Poonam Bai vs The State Of Chhattisgarh

2. The case of the prosecution in brief is as follows:

3. The trial court, on evaluation of the material on record, acquitted the appellant of the charges levelled against her. Feeling dissatisfied with the order of the trial court, the State preferred an appeal before the High Court, which vide the impugned judgment, as mentioned above, convicted the appellant under Section 302 of the IPC.

7. The prosecution mainly relies upon the dying declaration (Exhibit P­2), which is stated to have been recorded by the Naib Tehsildar­cum­Executive Magistrate (P.W.1) in the hospital. The oral dying declaration made by the deceased before Lalita Sahu (P.W. 2), Pilaram Sahu (P.W. 3) and Parvati Bai (P.W. 4) has also been relied on.

13. The trial court has taken pains to evaluate the entire material on record and has rightly come to the conclusion that the so­called dying declaration (Exh.P­2) is unbelievable and not trustworthy. Valid reasons have also been assigned by the trial court for coming to such a conclusion. Per contra, the High Court while setting aside the said finding has not adverted to any of the reasons assigned by the trial court relating to the authenticity or reliability of the dying declaration. The view taken by the trial court, in our considered opinion, is the only possible view under 9 the facts and circumstances of the case.

14. As far as the oral dying declaration is concerned, the evidence on record is very shaky, apart from the fact that evidence relating to oral dying declaration is a weak type of evidence in and of itself. As per the case of the prosecution, the deceased had made an oral dying declaration before Lalita Sahu (P.W. 2), Pilaram Sahu (P.W. 3), Parvati Bai (P.W. 4), and others. Though P.Ws. 2, 3 and 4 have deposed that the deceased did make an oral dying declaration before them implicating the appellant, this version is clearly only an afterthought, inasmuch as the same was brought up before the trial court for the first time. In their statements recorded by the police under Section 161 of the Code of Criminal Procedure, these witnesses had not made any statement relating to the alleged oral dying declaration of the deceased. These factors have been noted by the trial court in its detailed judgment. Thus, the evidence of P.Ws. 2, 3 and 4 relating to the oral dying declaration is clearly an improved version, and this has been proved by the defence in accordance with law.

15. Since the evidence relating to the dying declarations has not been proved beyond reasonable doubt by the prosecution, in 10 our considered opinion, the High Court was not justified in convicting the appellant, inasmuch as there is no other material against the appellant to implicate her. The motive for the offence, as alleged by the prosecution, has also not been proved.

16. Having regard to the totality of the facts and circumstances of the case, we conclude that the judgment of the High Court is liable to be set aside, and the same is accordingly set aside and that of the trial court is restored. As the appellant is acquitted of the charges levelled against her and she is in custody, we direct that the appellant be released forthwith, if not required in connection with any other case.

17. The appeal is allowed accordingly.

APRIL 30, 2019.