^^. '•'.^ • '^7 .:/ "'^ ^^<. ^.'^-y ./" s -y'..- m! -^p •\\. w CF0000064235 i Oiws'ot. -.—•""~ XN IHiE HIGH COIRT OF JDBICA.TERE At ABA.IPUR M.P. CriBiinal Appeal No.t&i>-\ of 2000. ABPBL1ANT -£N -3-A3.Y. SAL&U @ SA.L&UDDIN S/0 ABDHL QU&BIR, ageia about 38 years, resideat of KominpHra, Anbitopur , Diatrict Sarguja. (Versus) 'EHS SIAIE OF MtSH-Stt. PRASSH, through Police Statlon Aabikapur. CRE^^J^PPE^I; ®NDER_SSCimN 5Z^ii),_G;£_'rffi_c®B_OF CBimN&I. PBeCEDUBE. IK HIGH COURT OF JUDICATURE AT BILASPUR. CHHATTISGARH Criminal Appeal No. 1814 OF 2000 )•»- -;'s Salau aiias Salauddin v$. StateefM.P'. JUDGEMENT FOR CONSIDERATION BLE SHRI L.C.BHADOO .J. Sd/- Dhirendra Mishra Judge ! SdA L.G, Bhndoo i Judge POST FOR JUDGMENT ON I FEBRUARYZOOff DHBtENDRA MISHBA judge *-,'aa*t- iz^) f HiQH COURT OF CHHATT1SGARH: BILASPUR Division Bench: Hon'bie Shri L.C.Bhadoo &.Hon'bie Shri Dhirendra Mishra. JJ Crjminal Aepeai No^l814^rf2000 Vs. Appellant by Shri A.K.Prasad, Advocate. State by Shri Ashish Shukla, Additional Public Prosecutor with Shri M.P.S.Bhatia, Pariel Lawyer. JUDGME?»rT (Delivered on o) 102. /2006) Per DhirendraiWjshraLJ The appeSlant has preferred this criminal appeal under Section 374(2) of the Code of Criminal Procedure against the judgment of conviction and order of sentence dated 19.06.2000 passed in Sessions Trial No. 241/89 by the iearned First Additional Sessions Judge, Ambikapur (Surguja). Case of the prosecution, in brief, is that on the basis of information given by complainant Vimla Bai on 16.06.1988 at about 9.40 a.m. in the^overnment District Hospital (Femaie Surgical Ward), Ambikapur Dehati Naiishj of Ex.P/3 vras registered by Police Station-Ambikapur under Section 307 of the indian Pena! Cods wherein Vimla Bai has stated that on 15.06.1988 at about 11.30 hours in the night appeilant sprinkled kerosene oi! from the buroing oii lamp over her body an.d thereafterthrewthe lamp on her, as a resutt ofwhich her maxi caught fire and on hearing her cries other members of the family present in l^ @> •:.'.\ ^iE. the house eame to her room and extinguished the fire. The neighbours also came to the place of incident. She narrated the incident to them also and thereafter her ^rother Rajendra took her on riksha and admitted in the Government Hospita!. Due to burning her hair, forehead, both the eyes, nose, mouth, neck, both the ears, eheeks, both the shouiders, both the.y'hands, breast, stomach and the teft portion ofthe back had burnt.. After setting her in fire the appeilant had fled away. Complainant Vimla Bai was examined by the doctor after admission in the Hospital on 16.06.1988 who gave hjs opinion that she had sustained 50-60% burn injury because of flame. Her dying declaration of Ex.P/12 was recorded by M.R.Gayakwad (P.W.14), Nayab Tehsildar on 17,06,1988 in the Hospita!,.at about 12.30 hours in the presence of Dr. P.K.Banerjee (P.W.11). During investigation oil lamp made of tin container of oil paint and burnt hair were seized from the house of the complainant on 16.06.1988 vids f Ex.P/1. The partially burnt maxi and old petticoat ofthe compiainant wsre also seized vide Ex.P/2. Vide merg intimation dated 19.07.1988 of Ex.P/4 Virfiereby one Angatram informed that complainant Vimla Bai who was admilted in the Hospital on 16.06.1988 at about 12.20 hours after mid night had expired. The inquest was performed over the body of deceased Vimla Bai in the presence of vifltnesses. Body was sent for postmortem examination to District Hospital, Ambikapur. Postmortem was performed by the team of doctors namely Dr. R.K.Bajaj and Dr. Ashok Jain and they submitted their report (Ex.P/11). As per the postmortem report the cause of death is shock because of secondary infection due to burn. Bed head ticket of the deceased was seized vide seizure memo of Ex.P/8. Spot map of Ex.P/13. v^s .prepared by the Revenue Inspector Hanuman Singh (P.W.8). The appeiiant was arrested on 20.07.1988. Charge sheet •was filed against the appellant in the Court of Chief Judicia! Magistrate, Ambikapurwho in turn committed the case to the Court of Sessions Judge, Ambikapur and the same was received on transfer by the learned Additional Sessions Judge for trial. Charge under jV S.^Sr- —..aa.MBntaltw.s';'^.« his guilt in the Section 302 of the IPC was framed. The appeliant and stated that he is innocent and has been falsely i crime. The appellant was on bail,' however, warrant of arrest was issued against him on 11 .05.1991 aft?r canceling the bai! bonds furnished by him. The appellant was declared absconder on 09.09.1998 and permanent vrarrant of arrest was oi-dered to be issued. Thereafter statements ofwitnesses were recorded on 19.09.1998. The appeilant was arrested in execution of non-bailable vrarrant and produced before the triai Court on-.10.05.1999. The" witnesses v/ere cross- examined thereafter and statement of the accused was recorded under Section 313 of the CKP.C. The appeliant-flenied the circumstances appe'aring against him in the prosecution case and he examined three defence witnesses namely Dr. M.H.Firdoushi- Surgical Speciaiist (D.W.1), Santar,a-elder sister of ths deceased (D.W.2) and Rajendra-brother ofthe,,deeeased (D.W.3). After hearing the parties, learned trial court held the appellant guilty under Section 302 ofthe IPC and sentenced him as described above. The homicidal death ofthe deceased is not in dispute. Apart from this taking into consideration the First Information Report of Ex.P/3 lodged by the deceased herself, her dying declaration of Ex.P/12, M.L.C. report of Ex.P/9 in vrfiich it is mentioned that the deceased sustained 50-60% burn injury caused by flame and further considering the opinion of the doctors p.erforming autopsy who have stated that cause of death is due to shock because of secondary infection due to burn. it is held that the death of the deceased was homicidal in nature. Learned counsel for the appellant submits that there is no eyewitness to the incident and the appellant is convicted on the basis of all.e.ged dying declaration which is a suspicious document. In support of his contention he further argues that P.W.I-father of the deceased, P.W.3-step-mother of the deceased, P.W.4-Urmi!a and P.W.5 Jp;i t»&-<c.:...1:11! at.' ^u:-ii:aiMamwtt»ttnuKi>aa.#Ws°:^-?"ffi?''-]i'-.-i'^i&:;=.T'^ei 7. Sukhliya Bai who were present at the time of incident in the house have categorically stated that Vimta Bai did not disctose the name of the appellant after the incident and the report was in fact lodged by Santara Bai (D.W.2) as Vimla Bai was not in a position to speak. However, tearned triai Court ignoring the cross-examination of the witnesses Bechan Ram (P.W.1), Dasmatjya (P.W.3), Urmila (P.W.4) and Sukiiya Bai (P.W.5), has wrongly arrived at the conciusion that at the time of incident the appeliant was residing vvith the deceased in her house and further relying upon the dying declaration has held the appeilant guilty which is contrary to iaw. From perusal of the statements of witnesses'it appears that.the statements ofthe above witnesses were initially recorded jn the month of September 1998 while the accused was abscondirig and al! the witnesses nameiy P.W. 1, P.W. 3, P.W. 4 and P.W. 5 had statedthat when they rsached the place of incident after hearing the cries, Vim!a Bai informed them that the appellant has set her in' fire affter sprinkting kerosene from the burning oil lamp. However, on.tHeir cross-examination which was conducted after almost more than one year of their examination-in- chief, they resi!ed from their statements and have further stated that Vimla Bai did not name the appellant as she was not in a position to speak and the report was lodged by Santara Bai. Learned counsel for the appellant has assaiied the dying declaration recorded by Nayab Tehsildar on the ground that the same does not bear the thumb impression of the deceased and Dr. P.K. Banerjee who has certified that Vimla Bai was conscious and she was abie to depose, has not certified that she was abie to understand the quesflons and was competent to ansvirer the same and as such the dying declaration of Ex.P/12 is a suspicious document and the appellant cannot be held guilty sotely on the basis of dying dedaration. Learned counsel for the appellant places his reiiance in the matter of Rasheed Beg and others Vs. State of Madhva Pradesh reported in AiR 1974 S.C. 332 (V 61 C 85} and submits that dying declaratfon recorded under suspicious cireumstances should not be acted upon without corroborative ewdence as possibility of tutoring cannot be ruled out. 8. Further relying upon the judgment reported in AIR 1999 S.C. 345S in ^. the matter of Paparambjika Rosamma and others Vs. State of Andhra Pradesh submits 'that stipulation at the end of dying declaration by the doctor to the eflrect that patient is conscious white recording the statement in itself is not sufficient in the absence of medicai certification that the injured was in-a fit state of mind at the time of making the declaration and such declaration is unacceptabte and cannot be reiied upon. On the other hand, tearned counsel for the State supports the impugnedjudgment ofthetria! Court. 1 10. We have heard learned counsel forthe respective parties. 11. In the matter of Rasheed Beg (supra) dying declaration of 12 years old boy and his statement wsre recorded when the boy was serious and was loosing consciousness and the dying declaration was recorded when the boy was accompanied by a person who bore enmity with the named accused, therefore the Supreme Court held that it was nof safe to fasten the guiit on the basis of such dying declaration wfthout corroborative evidence. 12. So far as the judgment delivered in the matter of Paparambaka Rosamma (supra) is concerned, in the light of Constitutfon Bench -judgment ofthe Supreme Court in the matter ofLaxman Vs. State of Maharashtra reported in (2002) 6 S.C.C. 710. it is no longer a good law as in the said judgment it has been held that where the evidence was available to this effect that ths-declarant was in a fit sfate of mind to make deciaration, mere absence of dbctor's certification as to the fitness ofthe declarant's state ofmind would not ipso facto renderthe dying declaration unacceptable and absence of doctor's certification as to mental fitness of'the declarant is nof sine qua non for the credibility ofthe dying declaration. 13. The Suoreme Court in the matter of K.Ramachandra Reddv and another Vs. The Public Prosecutor reoorted in AIR 1976 S.C. 1994 has held as undsr; 'The dying declaration i~S undoubtedly admissibSe under Sect'ion 32 anct nol being a stafement on oath so that Ss trufh could be tested by cmss-examinafion, the Courts liave to appty the--str«fe^ scntiny and the ctosesf cirmmspactton to ths statement before acting upon it. Wh/le great solemnSy and 'sancfsty is atiached i6 the words ofa dying cnan because a personon tha verge of death is not iikeiy to tetl lies or to concocf a cass so as to impScate an innocent persorf, yet the Court has to be on guard againsf the sfatemenf of the deceassd being a resut af eSher tutoring, prompfing or a product of his imaginatiofi. The Court must be satisfiad thaf the decaased was in a fS state of'mind to make the statement afler the deceassd had a clear opportwSy t6 observa and identify his assailants and thai he was making the statement wShout any influence or rancour. Once the Court is satisfied ihat the dying dedaration is pmved and wiuntary it can be suffwient to found the convktion sven wShout any further corroboratton. A dying declarathn whicti has .been recorded by a compefant Magistrafe in the proper manner, fhat is fo say, in the form cf questions an<5 answers, and, as far ss practkable, in the words of the maker of the dsclaration. stands on a much higher footi'ng than a dymg declaration which depends upon ora! testimony which may suffer from al! ihs jnfirmkjes of human memory ancS human character. !n order to test the re!iabi!ity of a dying Cteclaration, the Court has to keep in visw the circumstances like the opportunity of the dying inan for observatton, for example, whether thsre was sufficient iight. if the crime wss commSted at night; whethsr ihe capacify of the mari to rsmember the facts f;. stafed had noi been imp^ired at ihe tims he was making fhe statamenf by circiimsfances beyond his corAro!; the slatsment has bean consistent throughout if he had ' severa! opportunSies of makmg a dying declaraftofi aparf from the afficial record ai S; and the datement had bsen made at the eariiest opportunity and was not the resuS of tutoring by interested partiss. One of.-the importani fesfs.af the relability ofa dying decSaratton is thaf the person who recordad S mysf be safisf/ed fhat ths deceased was in a ffi ^atecf mind." y Similarly, the Supreme Court in the matter of Bhola Turha Vs. State of Bihar reported in (1998) 9 Supreme Court Cases 15 has held that where the dying declaration is made within a short period of the incident and in which the deceased clearly explaining the circumstances under which he sustained injuries and where no inconsistency is present between the dying deciaration and other evidence on record, in such circumstances conviction may be based solely on the dying declaration. From the details enumerated hereinabove it is evident that the incident took place on 15th June 1988. Dehati Nalishi was recorded on 16th June 1988 at the instance of deceased Vimla Bai witierein she mentioned the drcumstances under which the incident took place and named the appellant as perpetrator of the offence. Vimla Bai was admitted in the Hospital and her dying declaration.(Ex.P/12) was recorded on 17.06.1988 by Nayab Tehsildar (P.W.14). The above dying declaration has been duly proved by Nayab Tehsildar who has s^ ^ 'A-''^'^y^='-.F[ stated in his deposition that he recorded the statement ofthe injured on 17.06.1988 after doctor certified that she was completely conscious and abte to make statoment. He has also stated that the statement v/as recorded in the presence ofthe doctor and he also recorded the questions put to h'er and answers thereof as given by Vimla Bai. He has further stated that Vimt? Bai was fujly conscious, however, she had extensiveiy burnt and therefore, she vras not in a position to sign or put her thumb impression as fingers of both of her. hands were burnt. In the cross-examination he has stated that he had gone there to record the dying declaration after authorization by the superior officers and he was not aware as to whp fodged the First information Report or he did not recognize the-Jnjured woman. He had denied the suggestion that he was brought by the police to rstford the dying declaration or he vas accompanied by the police. He has further denied the suggestion that Vimia Bai was unconscious or that the statement was recorded in the pr^sence of mother of Vimla Bai and her brothers. Dr. P.K. Banerjee.who has been examined as P.W. 11 has also stated that the Vimta Bai was fully conscious and able to give statement at that time as he had examined her before recording the statement and found her fully conscious and able to depose. He has also proved the entries made by him in Ex.P/12. He has categorically opined that the ievel of consciousness ofthe patient with 50-60% burn injury may aiso be fit. 16. Thus from the deposition of P.W.14 and P.W.11 who are Nayab Tehsildar and doctor respectively and as such independent witnesses, the dying declaration ofthe deceased recorded on 17.06.1988 is duly established. The defence has not been abie to showany infirmity in the statements of the above witnesses in order to discredit their version. 17. On the other hand, D.W.1 M.H. Firdousi, Surgical Specialist has stated in paragraph 2 of his cross-examination that in burn cases a person having 80-90% burn injury may also remain conscious and thus fortified the opinion ofP.W.11 . !n view of the above, w6 are of the considered opinion that declaration ofdeceased Vimla Bai recorded on 17.06.1988 has been duly proved by the doctor and the Nayab Tehsildar and documents of Ex.P/12 has been recorded as'per deciaration ofthe deceased. The argument advanced by-learned counsel for the appellant is that P.W. 1, P.W. 3, P.W.4 and P.W.5 who are father, step-mother, brother and sister of the deceased respectiveiy have categoricaliy stated in their cross-examinations that the deceased was not in a position to state anything as she had sustairied severebum injuries and she did not diselose that she w/as set in fire by-fhe appellant and furtherthat the F!R was in fact lodged by Santara Bai and therefore, in the light ofthe statements of the above witnesses who were present at the time of incident in the house, brought the deceased and admitted her in the Hospitai, the dying declaration becofries a suspicious document and the same cannot be acted upon. ' We are unable to accept the above argument because from perusal of the statements ofthese w'tnesses it is evident that they jnitially stated in their examination-in-chiefthat Vimla Bai informed that the appellant set her in fire by sprinkling kerosene from the burning oi! lamp and thereafter threw the lamp on her and fled from the scene of occurrence and subsequently they resiled from their earlier statements in the cross-examination. In the aforesaid circumstances, the appetlant cannot be extended any benefit on the basis of statements ofthese witnesses. So far as the contention of P.W. 1 that the report was in fact lodged by Santar Bai as the deceased was not in a position to speak is concerned, the contention of this witness does not get support from the statement of Santara Bai who has been examined as P.W. 2 and stated that in fact she lodged the report and for the first time she 10 23. stated in the Court that her sister sustained burn injuries because of bursting of stove and the death was in fact accidental. From cross- examination ofthis witness it is evident that she was not present at the time of incident, she did not go to get her sister admitSed in the Hospital and she' had only once visited Vimla Bai while she wss admitted in the Hospital. From perusal of cross-examination of other witnesses it would be evident th.at none ofthe witnesses has stated in their statements that Vimla 3ai sustained'injuries because of biirsting of stove. On the contrary, P.W. 4 Urmiia- sister-in-law of the deceased has stated in paragraph-2 ofher statement that she resides beside the house ofVJmla.Bai and after.hearing the noise she went to the house of Vimla Bai and found her unconscious and burnt and stove war burning in her house." Similariy D..W. 3 Rajendra-brother of deceased Vimia Bai has also stated that 'vvhen he went to the Ho^pltai he saw that his sister was not in a fit condition to speak. Hovi/ever, he has admitted ihat he oniy once visitecf his sister in the Hospital and thereafter he never vrent to the Hospital. In the cross-examination he has stated that on the date of incident he was not in his home as he had gons to Sitapur and came to know about the incident on the foliov/ing day and thereafter, he went to Ambikapur and saw the deceased in the Hospita! at about 1.30p.m. Thus on close scrutiny ofthe statements of P.W. 1, P.W. 3, P.W. 4, P.W. 5 and D.W. 2 and D.W.3 who ^are ciose relath/es of the deceased, we are of the considered opinion that they are not the wtnesses oftruth and for sorne reason they are concealingthe facts, therefore, no benefit can be extended to the appe!lant on the basis of statements of such wtnesses. We have already held that the F.irst Information Report was lodged by the deceased immediately after the incident vide Ex.P/3 narrating the circumstances under which she was set in fire by the appellant and we 11 24. have further held that the dying declaration of Ex.P/11 is trustworthy as the same has been recorded by a competent authority after certification of mental fitness of the declarant and the Court below has rightly held the appellant guilty on the basis of above dying declaration and other circumstances narrated by it in paragraph-22 of the judgment. f, On the basis of aforesaid analysis, we are ofthe opinion that there is no illegality or infirmity in the impugned judgment passed by learned Additional Sessions Judge whereby the appeilant has been held guilt of the offence under Section 302 of the IPC. Therefore,the appeat being devoid of merits deserves to be-dismissed and it is accordingly dismissed. . ". Sd/- L.G.Bhadoo Judge Sd/- Dhirendra Mishra Judge