HIGH COURT OF CHHAmSGARH AT BILASPUR DIVISION BENCH CORAM: HON'BLEMR. T.P.SHARMA & HON'BLE MR. RANGNATH CHANDRAKAR, JJ. APPELLANTS (In JaU) CRIMINAL APPEAL N0. 192/2007 (. Ramaratan RESPONDENT VERSUS State of Chhattisgarh JUDGEMENT FOR CONSIDERATION Sd/- T.P. Sha^ma Judge Hon'ble Mr. Ranenath Chandrakar J. CL^t^i-e-e- ~ cf ^^L Sd/- R.N. Chandrakar Judge Post for Judgment on: 21/09/2011 i'^:Sd/-,;: T.E.Shanma Judge ini r ,.^?S, -"%A'*1' '/'"^ 't ;K ' • il '^'SiS^ i '••s;S..ii8^ia<| K i'^-.^ HIGH COURT OFCHHATTISGARH AT BILASPUR DHHSION BENCH CORAM: HON'BLEMR. T.P. SHARMA SB HON'BLE MR. RANGNATH CHANDRAKAR. JJ. APPELLANTS (In Jail) RESPONDENT CRIMINAL APPEAL N0. 192/2007 Ramaratan, s/o Ramkumar Rajak, aged about 26 years, r/o Lamer, P.S. Kota, District Bilaspur (C.G.) VERSUS State of Chhattisgarh, through Police Station, Kota, District 'i Bilaspur (C.G.) CRIMINAL APPEAL UNDER SECTION 374(21 OF CODE OF CRIMINAL PROCEDURE. 1973. Present:- Mr. P.K.C. Tiwari, Sr. Advocate with Mr. D.K. Shukla, Advocate for the appellant. Ms. Madhu Nisha Singh, P.L. for the State/respondent. JUDGEMENT (Passedon 21/09/2011) The following iudgment of the Court was passed bv T.P. Sharma. J:- 1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 2/3/2007 passed by 9th Additional Sessions Judge (F.T.C.), Bilaspur (C.G.) in Sessions Trial No. 344/2005 whereby and where under after holding the appellant guilfry for comraission of offence of culpable homicide amounting to murder of his wife Pushpadevi, convicted the appellant under Section 302 of fhe Indian Penal Code and sentenced imprisonment for life and fine of Rs. !ir -i^/ 1i:iiil :]~^mww^^ N .:®a^j }? s .^'^ ,.. ^yy \^^ i'i£l;eSS@!; t^ !»ti»i8a!!a 100/-, in default of payment of fine amount, additional iniprisoninent for 1 month. Conviction is impugned on the ground that without any iota of evidence sufficient for conviction of appeUant Court below has convicted and sentenced the appeUant as aforeinentioned and thereby cominitted an illegality. As per case of the prosecution, Pushpadevi (since deceased) was ruarried to appellant 3 years prior to commission of incident dated 26/6/2005, appellant committed torture and cruelty in connection with demand of dowry upon deceased, relation between appellant and Pushpadevi were not cordial, some time before the incident, Panchayat meeting was convened and matter was resolved. On 26/6/2005 at about 7:00 A.M. Pushpadevi was suffering for abdominal pain and was sleeping in her house, appellant abused her and threatened to left the house then with a view to frighten him, she poured kerosene oil over her then appellant told that he will really set her ablaze and kill her, thereafter appellant poured reraaining kerosene oil over her and set her ablaze. PW3 Shyamratan brother-in- law of deceased Pushpadevi saw the incident and came and poured water over F>ushpadevi and also used bed sheet for extinguishing fire and succeeded for extinguishing Gre. PW4 Rajendra Rajak, village Sarpanch brought her to doctor of village Ganiyari ,0 thereafter PW3 Shyamratan 85 PW4 Rajendra Kumar brought her to SIMS Hospital, Bilaspur for treatEnent. She lodged Dehati Nalishi vide Ex. P-12. Her dying declaration was recorded by PW6 R.S. Kushwaha, Assistant Sub-Inspector vide Ex. P-6. PW7 B.S. Markam, Executive Magistrate recorded her dying declaration vide Ex. P-7. She was examined by PW14 Dr. R.K. Upadhyay vide Ex. P-12 (also marked Ex. P- 5A), doctor has ndticed burn injury of 60% over chest, abdomen, hands 8s back and smell of kerosene oil was coming out froin her body & cloths. She was admitted in causality unit (burn unit). During course of treataient, she made dying declaration to her father & mother i.e. PW1 Vijay Rajak 8s PW2 Jeerabai whom PW3 Shyamratan has telephoned and informed the incident. During course of treatment, she died on 7/7/2005. Death was intimated vide Ex. P-10. Police Outpost Kotwali, Bilaspur recorded Marg intimation vide Ex. P-9. Police Outpost Kota also recorded Marg intimation vide Ex. P-8. First Information Report was lodged vide Ex. P-13. After summoning the witnesses, inquest over the dead body of Pushpadevi was prepared vide Ex. P-4. On 2/7/2005 burnt sari, Jaricane of kerosene oil were seized from the PW3 Shyamratan vide Ex. P-14. Dead body of Pushpadevi was sent for autopsy to SIMS Hospital, Bilaspur from where PW15 "i1 ^F ''<-.. ^-..-..^•i^' •y ~..^:^' ^ BSitl Dr. Ashutosh Tiwari conducted autopsy vide Ex. P-15 and found burn injuries over the body of Pushpadevi 85 3 months fetus found in uterus. Mode of death was septicemic shock. Statenients of the witnesses were recorded under Section 161 ofthe Code of Criminal Procedure, 1973 (in short 'the Code'). After completion of the investigation charge sheet was filed before Judicial Magistrate First Class, Bilsapur v?ho in turn corainitted the case to the Court of Sessions, Bilaspur from where leamed 9th Additional Sessions Judge (F.T.C.), Bilaspur (C.G.) has received the case on transfer for trial. In order to prove the guilt of the appellant prosecution examined as inany as 15 witnesses. Accused/appellant was examined under Section 313 of the Code. On the ground of her incomplete examination and incoraplete opportunity of explanation, trial Court also examined her additionally the appellant where he denied the circumstances appearing against him and pleaded innocence and false implication in the crime in question. Appellant has taken defence that he has not poured kerosene oil over her and has not set her ablaze. She was biiming in kitchen while she was cooking food, appeUant has tried to extinguished fire, during course of such attempt, he also received burn injury pf 35%. Pushpadevi was epilepsy patient and she E'IIII was under treatment. Appellant has examined defence witnesses DW1 Dr. G.R. Hotchandani, DW2 Rajkumar & DW3 Dr. A.S. IChan (relating to burn injuiy of appellant) in support of his defense that Pushpadevi was epilepsy patient. 7. After affording an opportunity of hearing to the parties, learned 9th Additional Sessions Judge (P.T.C.), Bilaspur (C.G.) while acquitting the appellant under Sections 498-A 8s 304-B offthe Indian Penal Code, convicted and sentenced the appellant under Section 302 of the Indian Penal Code. 8. Mr. P.K.C. Tiwari, Sr. Advocate with Mr. D.K. Shukla, Advocate for the appellant and Ms. Madhu Nisha Singh, P.L. for the State/respondent are heard. Judgment impugned and record of the Court below perused. 9. Leamed counsel for the appellant vehemently argued that initially as per case of the prosecution, PW3 Shyamratan was eyewitness and he had witnessed the incident, his statement under Section 161 of the Code was recorded by Police on 27/6/2005, second day of the incident vide Ex. D-1 in which he has categorically stated the incident, in his Court's evidence he has categorically deposed that it was an accident, he 85 his brother i.e. appellant tried to extinguished fire and finally they succeeded but Court below has convicted the appellant on the basis of circumstantial evidence. If iinnsitii'i- NSjBiB the case is based on evidence of eyewitness then eyewitness may believed may not believed but other set of evidence i.e. circumstantial evidence cannot be considered that too in contrary to the evidence of eyewita-iess although it may be considered for corroboration. 10. Learned counsel for the appellant further argued that PW3 Shyamratan has categorically deposed that it was a case of accident;:and not of murder. There was no reason to disbelieve his evidence whom even prosecution has not declared hostile. 11. Leamed counsel for the appellant also argued that initially charge under Sections 498-A & 304-B of the Indian Penal Code were also framed specially on the basis of dying declaration Ex. P-7 recorded by PW7 B.S. Markam, Executive Magistrate which reveals that appellant had tortured and committed cruelty in connection with demand of dowry. PW1 Vijay Rajak, father of Pushpadevi has corroborated the demand of dowry but Court below has acquitted the appellant under Sections 498-A 65 304-B of the Indian Penal Code on same set of evidence then conviction of the appellant under Section 302 of the Indian Penal Code on same set of evidence was not legally pennissible. 12. As per case of the prosecution, there are three written dying declarations and two oral dying declarations. As i.^l.i ,.:;..*i'^g*»».•i per flrst dying declaration recorded on 27/6/2005 at 00.30 A.M. i.e. at night by PW6 R.K. Kushwaha, Assistant Sub-Inspector which reveals that firstly she poured kerosene oil over her thereafter appellant poured kerosene oil over her and set her ablaze. Before incident, they were quarrelling and appellant was condemning her that she do not work thereafter second dying declaration was recorded on 1/7/2005 at about 5:30 P.M. after 5i days 85 10 hours of Grst dying declaration as Dehati Nalishi Ex. P-12 by PW12 Tulsiram Sidar, Assistant Sub-Inspector in which deceased has stated that on account of abdominal pain, she was sleeping in her house, appellant abused her and with a view to frighten the appellant i.e. her husband, she poured small quantity of kerosene oil over her but appellant poured entire kerosene oil and set her ablaze. There by she had changed the actual case of incident. Again, her dying declaration was recorded vide Ex. P-7 on 4/7/2005 by PW7 B.S. Markam, Executive Magistrate at 11:40 A.M. in which she has given specific cause of incident that appellant used to demand dowry i.e. Cooler & Rs. 2000/- and also comniitted torture, he has assaulted her appellant himself has poured kerosene oil over Pushpadevi and set her ablaze. Pushpadevi also made oral dying declaratipn to her father i.e. PW1 Vijay Rajak in which li.lli.i-,.. she has stated that in connection with demand of Cooler, TV & money, appellant has bumt her. 13. As per evidence of PW2 Jeerabai, mother of Pushpadevi, on account of non-working of Pushpadevi, appellant has poured kerosene oil and burnt her. Appellant has also received burn injury of 35%, bum injury found over the body of appellant was not trifle in nature. Pushpadevi has not explained the mji-iries of appellant in her written or oral dying declaration but PW2 Jeerabai, raother of Pushpadevi has explained in Para-4 of her cross-examination that when she was set her ablaze by appellant fhen she caught hold appellant by saying that where you will go means she caught hold her husband with a view to kill him along with her but this explanation does not finds place in her written dying declaration although Ex. P-7 was recorded after 8 days of the incident, at the time of admission, she was unconscious. As per evidence of PW14 R.K. Upadhyay who has firstly examined the injured, injured was unconscious but he had not deposed that when she regain conscious, in absence of bed head ticket, prosecution has not filed and proved the bed head ticket. 14. Learned counsel for the appellant also argued that although hearsay evidence i.e. dying declaration may be basis of positive finding/conviction in which defence do / B> SirtisfBii not have opportunity to cross-examine to testify the evidence. Evidentiaiy value of dying declaration is based on legal maxim "nemo moriturus proesumitur mentirf- a. raan will not meet his maker with a lie in his mouth therefore, prosecution is required to prove that deceased has given true dying declaration, she was fit state of mind to give dying declaration there was eminent danger to her life, she was under believe that she will not survi^e, but prosecution has utterly failed to prove aforesaid circumstances to bring the dying declaration within the Eunbit of admissible evidence. 15. Learned counsel for the appellant also argued that prosecution has suppressed First Information Report and prosecution has not able to explain which one is First Information Report who has lodged First Information Report after recording first dying declaration Ex. P-6 on 27/6/2005 at 00:30 A.M. i.e. at night. There was no occasion for recording Dehati Nalishi Ex. P-12 even prior to recording such dying declaration on 27/6/2005 at about 9:40 A.M., doctor had examined her vide Ex. P-13 Kotwali Police has sent requisition vide Ex. P-5, Ex. P-5 may be First Information Report. 16. Learned counsel for the appellant also argued fhat prosecution has utterly failed to prove the true dying declaration of Pushpadevi and need of cu-cumstantial 10 ^^- .,.: ^, evidence in presence of direct evidence of eyewitness therefore, appellant deserved to be acquitted. 17. Learned counsel for fhe appellant placed reliance in the matter of Aniol Singh v. State of M.P.1 in which Supreine Court has held that in case of true dying declaration having inconsistency in motive, there is also other discrepancy then in absence of evidence of ta'ue and last dying declaration, conviction on the basis of dying declaratiori(:is notsafe. Leamed counsel for the appellant further plaeed reliance in the matter of State of U.P. v. Oainbhir Singh and Others2 in which Supreme Court has held that on the basis of doubtful circumstances and evidence, accused cannot be convicted. Leamed counsel for the appellant also placed reliance in the matter of Sukhrani v. State of Madhya Pradesh3 in which Supreme Court has held that conflict between evidence of eyewitness, conviction is not safe. Leamed counsel for the appellant also placed reliance in the matter of Munigadappa Meenaiah v. State of Andhra Pradesh4 in which Supreme Court has held that relationship with deceased does not affect credibility of witness but more often than not relation would not conceal actual culprit and make allegation against the innocent person. ' 2008 (3) CCSC 1385 (SC) 2 2005 CRI.L.J. 2579 ' AIR 1989 SC 772 ." 2008 AIRSCW 5091 r 11 18. Learned counsel for the appellant also placed reliance in the matter of Santosh v. State of C.G.5 in which High Court of ChhatUsgarh has held that in case of doubtful dying declaration and circumstantial evidence, accused is entitled for acquittal, dying declaration is required to be recorded by Judicial Magistrate. Learned counsel for the appellant also placed reliance in the matter of Vadivelu Thevar v. The State of Madras6 in which Supreme Cburt has held that Court may act on the testimony of single witness who is fully reliable but in case of evidence of partially reliable witness is necessary corroboration from independent sources. 19. On the other hand, learned Panel Lawyer for the respondent/State opposed the criminal appeal and argued that PW3 Shyamratan is not an eyewitness, he is brother of appellant and he has supported defence of appellant since its inception. Evidence of brother of appellant although prosecution has not declared him hostile cannot be considered as a gospel truth. Three written dying declarations and two oral dying declarations are sufficient for drawing definite conclusion that appellant has poured kerosene oil over her wife and set her ablaze thereby appellant has kiUed his wife. 2008 (2) C.G.L.J.6 (DB) 'AIR 1957 SC 614. 12 IBa:i 20. In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the prosecution. 21. As per undisputed facts, F>ushpadevi received burn injury of 65% on 26/6/2005 and she died on 7/7/2005 11th day of such incident by septicemic shock. septicemic shock is very common in burn injury virtually cause of death. In the present case is bum injury and its comiplication, defence has not opposed factum of burn injuiy. Prosecution has established the death as a result of burn injury by the evidence of PW14 Dr. R.K. Upadhyay, injury report Ex. P-12, PW15 Dr. Ashutosh Tiwari & autopsy report Ex. P-15. Death of Pushpadevi was abnormal as a result of burn injury and its complication. 22. As regards the complicity of appellant in crime in question, conviction of the appellant is substantially based on dying declaration made by Pushpadevi to Police Officer, Executive Magistrate and oral dying declaration to her father 85 mother i.e. PW1 Vijay Rajak 8s PW2 Jeerabai. By examining defence witnesses DW1 G.R. Hotchandani & DW2 Rajkumar, appellant has tried to establish that Pushpadevi was suffering from epilepsy and some time she fall down and become unconscious. By examining aforesaid witnesses 85 dociiments Exs. D-2, D-3, D-4 SE D-5, appellant has 13 lltlStSI!' 23. tried to show that bum injury may be as a result of accident on account of epilepsy but entire evidence of prosecution and evidence of PW3 Shyamratan whom appellant has placed reliance reveals that at the time of such bum injury, Pushpadevi was not lying unconscious even as per defence of appellant, Pushpadevi shouted "eTEiTsrr-eraigft" then he rushed shows that Pushpadevi has not received any burn injury on account of epileps^ on falling over lamp or gas at the time of cooking food. Prosecution has examined PW3 Shyamratan, as per his evidence, he along with his brother i.e. appellant were repairing TV channel when Pushpadevi received burn injuiy and shouted for help then he along with appellant extinguished fire and brought her to the hospital. This evidence has been disbelieved by trial Court on the ground that he was aged about 13 years, previous Presiding Officer has not administered oath to him only on the ground of irregularity in administering oath or absence of taking oath, evidence of any witness cannot be discarded even otherwise Court was not obliged to consider evidence of single witness PW3 Shyamratan that too in the light of other evidence for any conclusion. As per case of the prosecution, conviction is based on dying declaration made by Pushpadevi. Dying declaration is a hearsay evidence in which person ''K" 14 iirtlBBII against whom it may be used do not have any opportunity to testify such evidence by cross examination. 24. In order to convict the accused on the basis of dying declaration, prosecution is required to prove the fact that deceased has given true dying declaration relating to cause of death and he or she was fit state of mind to state such dying declaration. In the present case, as per evidence of Paras-6 85 7 of PW14 Dr. R.K. Upadhyay, at the time of her initial examination, she was not in position to state but in absence of bed head ticket, he is not in position to depose that when she became fit or to give her statement but only on this ground oral and written d}dng declarations cannot be discarded. Prosecution has relied three written and two oral dying declarations. First dying declaration Ex. P-6 was recorded by PW6 R.K. Kushwaha, Assistant Sub- Inspector on 27/6/2005 at 00:30 A.M. i.e. at night. Ex. P-6 reveals substantially 4 facts:- (i) On 26/6/2005 at about 7:00 A.M. at morning, appellant was quarrelUng with her that she is not working then she annoyed and poured kerosene oil over her. (ii) Her husband also poured kerosene oil over her and set her ablaze. (iii) PW3 Shyamratan, her brother-in-law extinguished fire. 1 15 (iv) Village Sarpanch PW4 Rajendra Kumar brought her to doctor of Ganiyari thereafter he brought her to hospital. 25. Second dying declaration Ex. P-12 was recorded on 1/7/2005 at about 5:30 P.M. after 5 days SE 10 hours of first dying declaration Ex. P-6 in wl-iich finds following facts:- (i) On account of abdominal pain, she was sleeping her house on 26/6/2005. (ii) Her husband; abused her when he saw that she -is sle^ping. (iii) With a view to frighten her husband, she poured some kerosene oil over herself. (iv) Appellant told her that he will really kill her. (v) Appellant poured rest kerosene oil over her and set her ablaze. (vi) Her brother-in-law extinguished fire. (vii) Village Sarpanch PW4 Rajendra Kumar brought her to doctor of Ganiyari. 26. Third dying declaration was recorded on 4/7/2005 at about 11:40 A.M. i.e. after 8 days of first dying declaration and 3 days of second dying declaration as Ex. P-7 by PW7 B.S. Markam, Executive Magistrate which reveals following facts:- (i) Appellant used to commit torture and cruelty and he demanded Cooler and Rs. 2000/-. (ii) Appellant did not permit her to go her maternal house. 16 m[ III1 (iii) Appellant assaulted her in connection with deraand of Cooler. (iv) Appellant set her ablaze. (v) PW3 Shyamratan, her brother-in-law extinguished fire. (vi) Village Sarpanch, PW3 Shyamratan and her mother-in-law brought her to hospital. (vii) Again, being asked she replied that her husband also brought her to hospital and has put condition that being asked she will not telling anything other than the fact that she herself has bumt by Chimm/lamp and she has stated truth. 27. As per evidence of Paras-4 & 5 of PW1 Vijay Rajak, father of Pushpadevi, her daughter has made dying declaration that appellant has burnt her after quarrelling. Appellant used to demand Cooler, TV 85 money and her brother-in-law extinguished fire. As per evidence of PW2 Jeerabai, mother of Pushpadevi before whom Pushpadevi has also made dying declaration after 2-4 days. As per Para-4 of the evidence, after blaming that Pushpadevi that she is not working, appellant poured kerosene oil over her and set her ablaze, her brother-in-law extinguished fire. She has offered explanation that how appellant received injury. As per Para-4 of her evidence, after receiving burn injury, Pushpadevi caught hold her husband and told that where he will go and you also bum. 17 IBSil 28. Appellant has examined DW3 Dr. A.S. Khan. As per his evidence, on 26/6/2005 at about 8:40 A.M. he has examined appeUant Ramaratan vide Ex. D-1A and found superficial injury of burn up to skin deep and upper part of face, neck, front part of chest, front part of abdomen & front part of hands who was also admitted in burn unit. Document Ex. D-1A shows that burn injuiy was of 35%, admission register vide Ex. D- 5 shows that an^ 26/6/2005 at about 8:40 A.M. Pushpadevi was admitted in burn unit and Ramaratan i.e. appellant was also admitted in same day at about 8:45 A.M. in bum unit. 29. In order to place reliance in dying declaration, prosecution was required to prove that all or any dying declaration of deceased was a true dying declaration. If we examined these three written and two oral dying declarations then they would show that as per oral dying declaration made to PW1 Vijay Rajak, cause of incident was quarrel and demand of dowry. As per evidence of PW2 Jeerabai, cause of incident was non- working of Pushpadevi. As per Ex. P-6, cause of incident was quarrel on account of non-working. As per Ex. P-12, cause of incident was non-working of Pushpadevi on account of abdominal pain. As per Ex. P-7, dying declaration recorded by PW7 B.S. Markam, Executive Magistrate, appellant demanded Cooler, 18 30. money and assaulted her before such incident, he also used to commit torture and cruelty in connection with demand of dowry then she ablaze shows that cause of incident was assault made by appeUant in connection with demand of Cooler. As per first medical examination Ex. P-12, history of assault was burn injuiy at the time of cooking food. Pushpadevi was admitted in hospital on 26/6/2005 at about 8:40 A.M. but Police of out post situated in the SIMS Hospital premises or City Kotwali, Bilaspur or Kota Police had not recorded any First Information Report till 1/7/2005 i.e. after 5 days of such incident sdthough her medical requisition Ex. P-5 was on 27/6/2005. Her first dying declaration recorded by Police on 27/6/2005 as Ex. P-6 but reasons best known to the Police Officers, they have not recorded any First Information Report, Dehati Nalishi was recorded on 1/7/2005 after 5 days of incident as Ex. P-12 especially when Police was having definite knowledge on 27/6/2005 at the time of recording dying declaration Ex. P-6 that this is a case of attempt to commit murder by causing burn injury. Exs. P-6 85 12 reveal that initially Pushpadevi has poured kerosene oil thereafter appellant has poured kerosene oU, this is a statement to Police but she has not stated this fact to PW7 B.S. Markam Executive Magistrate in Ex. P-7, PW1 Vijay Rajak, her father and 'V. . / iii..i 19 31. ^f PW2 Jeerabai is her mother. She has not stated in Exs. P-6, 12 & 7 and while making oral dying declaration to her raother and father that appellant has also received burn injury or appellant was