Written dying declaration is preferred over oral dying declaration in case there is any conflict between the two of them: Chhattisgarh High court

HIGH COURT OF CHHATTISGARH BILASPUR Criminal Appeal No.2202 Judgment Reserved on : 19.3 . 2021 Judgment Delivered on : 24.5.2021 Sanjay Sahu son of Dehul Ram Sahu aged about 24 years resident of Village Parana P.S. Arjunda District Durg Chhattisgarh State of Chhattisgarh Appellant Respondent For Appellant Shri N.S. Dhurandhar Advocate Shri Roshan Dubey Panel Lawyer Hon ble Shri Justice Arvind Singh Chandel C.A.V. JUDGMENT This appeal is directed against the judgment dated 12.2.2002 passed by the Special Judge and Additional Sessions Judge Durg in Sessions Trial No.1400 whereby the Appellant has been convicted and sentenced as under: Under Section 306 of the Indian Penal Rigorous Imprisonment for 3 years and fine of Rs.2 000 with default According to the case of prosecution the Appellant is husband of Mainabaiwas lodged by her father Sureshwas also lodged On the basis of morgue inquiry and written complaintFirst Information Report was registered. Post mortem examination over the dead body of Mainabai was conducted. Post mortem report is Ex.P3 according to which deceased Mainabai had sustained 85% burn injuries and cause of her death was shock Inquest proceedingwas conduct. Statements of witnesses were recorded under Section 161 of the Code of Criminal Procedure. On completion of the investigation a charge sheet was filed. The Trial Court framed charges against the Appellant and co accused Jaiwanbai. To bring home the offence the prosecution examined as many as 15 witnesses. Statements of the Appellant and co accused were also recorded under Section 313 of the Cr.P.C. in which they denied the guilt pleaded innocence and false implication. It was the defence of the Appellant that there was cordial relation between him and his wife deceased. Her death was accidental. During the course of treatment in the hospital after obtaining a certificate of fitness of Mainabai to make statement her written dying declaration Ex.D2) was also recorded by an Executive Magistrate. In his defence the Appellant has examined two witnesses namely Dr V.K. Sao who gave the fitness certificate as Defence Witness No.1 and Naib Tahsildar Executive Magistrate U.S. Agrawal who recorded the written dying declarationas Defence Witness No.2. On completion of the trial the Trial Court acquitted co accused Jaiwanbai of the charge framed against her under Section 306 read with Section 34 of the Indian Penal Code but convicted and sentenced the Appellant as mentioned in 1st paragraph of this judgment. Hence this appeal. Learned Counsel appearing for the Appellant argued that without there being sufficient and clinching evidence on record against the Appellant the Trial Court has convicted him. It was further argued that immediately after the incident the Appellant took injured Mainabai to District Hospital Durg and thereafter for her better treatment took her to Sector 9 Hospital Bhilai. On 6.6.1999 itself Executive Magistrate U.S. Agrawalafter obtaining a fitness certificate from Dr. V.K. Sao recorded written dying declarationof injured Mainabai. But the prosecution has suppressed this fact and did not submit the said written dying declarationalong with the charge sheet. According to the contents of the written dying declarationthe incident was accidental. Injured Mainabai died on 11.6.1999. Between 6.6.1999 and 11.6.1999 injured Mainabai did not make any complaint that she was put under pressure for making the said written dying declarationhas a higher evidentiary value. Executive Magistrate U.S. Agrawal had nothing to do with injured Mainabai or the accused persons. He recorded what was said by Mainabai. Ex.D2 is a vital material document which was suppressed by the prosecution by not filing it along with the charge sheet. The Investigating Officer did not make a fair investigation Oral dying declaration as stated by Suresh and Sushila PW5) father and mother of deceased Mainabai respectively is a weak type of evidence. Therefore finding of the Trial Court in this regard is not in accordance with law. It was further argued that even if for the sake of argument it is considered to be true that the death was suicidal there is no evidence on record to show that Mainabai was instigated or abetted to commit suicide as defined under Section 107 of the Indian Penal Code. Therefore also conviction of the Appellant is not sustainable. In support of his contention Learned Counsel placed reliance on a judgment of this Court in Criminal Appeal No.7113rendered on 8.11.2017. He also relied on 2008) 16 SCC 705 of the woman harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.” Dealing with the similar issue in11 SCC 205it has been observed by the Supreme Court as In our opinion the view taken by the High Court is correct. It often happens that there are disputes and discords in the matrimonial home and a wife is often harassed by the husband or her in laws. This however in our opinion would not by itself and without something more attract Section 306 IPC read with Section 107 IPC. However in our opinion mere harassment of wife by husband due to diferences per se does not attract Section 306 read with Section 107 IPC if the wife commits suicide. Hence we agree with the view taken by the High Court. We however make it clear that if the suicide was due to demand of dowry soon before her death then Section 304 B IPC may be attracted whether it is a case of homicide or suicide. 5 SCC 207 Satvir Singh v. State of Punjab 8 SCC 633 and Shanti v. State of Haryana 1 SCC 371.)” Further it has been observed by the Supreme Court in AIR 2010 SC 327as “20. Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in conviction cannot be committing suicide The intention of the Legislature and the ratio of the cases decided by this court is clear that in order to convict a person under section 306 IPC there has to be a clear mens rea to commit the ofence. It also reuuires an active act or direct act which led the deceased to commit suicide seeing no option and this act must have been intended to push the deceased into such a position that he In 3 SCC 626 the Supreme Court by the following observation has clearly held that in order to convict a person under Section 306 of the IPC there has to be a clear mens rea to commit the offence: “45. The intention of the legislature and the ratio of the cases decided by this Court are clear that in order to convict a person under Section 306 IPC there has to be a clear mens rea to commit the ofence. It also reuuires an active act or direct act which led the deceased to commit suicide seeing no option and this act must have been intended to push the deceased into such a position that he she With regard to a dying declaration in Samadhan Khudaka Koli case supra) it is observed by the Supreme Court as under: “12. A dying declaration made before a Judicial Magistrate has a higher evidentiary value. The Judicial Magistrate is presumed to know how to record a dying declaration. He is a neutral person Why the prosecution had suppressed the dying declaration recorded by the Judicial Magistrate is not known. Prosecution must also be fair to the accused. Fairness in investigation as also trial is a human right of an accused. The State cannot suppress any vital document from the court only because the same would support the case of the 13. The learned Sessions Judge as also the High Court in our opinion committed a serious illegality in refusing to consider the said uuestion in its proper perspective. The prosecution did not explain as to why the said dying declaration was not brought before the court. The learned Sessions Judge as also the High Court surmised about the contents thereof. Not only the contents of a dying declaration but also the manner in which it is recorded and the details thereof play a significant role in the matter of appreciation of evidence.” In the light of above enunciation of law I shall now discuss the evidence available on record of the present case. It is not in dispute that marriage between the Appellant and Mainabai deceased) was solemnised 3 years prior to the incident. It is also not in dispute that Mainabai was brought to the District Hospital Durg by the Appellant on 6.6.1999. Thereafter she was brought to Sector 9 Hospital Bhilai for better treatment. There during the course of treatment she died on 11.6.1999. According to the post mortem reportand the opinion given therein by Autopsy Surgeon Dr. P.C. DeshmukhMainabai had sustained 85 burn injuries and cause of her death was shock Sureshand Sushilafather and mother of deceased Mainabai respectively have deposed that till about 1 year after the marriage of the Appellant and Mainabai Mainabai was living at her matrimonial house happily. According to the Court statement of Sureshthe Appellant was in the habit of consuming liquor and was also committing marpeet with Mainabai saying her that she was not fit for him. He has further deposed that 1 week before the incident Mainabai had run out of her matrimonial house and come to his house. At that time she had told him that the Appellant and her mother in law used to beat her. Thereafter when family members of the matrimonial house of Mainabai came to his house this witness sent Mainabai back to her matrimonial house. 1 day thereafter he came to know that Mainabai had burnt. He went to the District Hospital Durg and saw there that Mainabai had burnt According to this witness Mainabai told him in the hospital that as a result of the harassment due to marpeet being committed with her daily she poured kerosene on her and set herself on fire. This witness has further deposed that he made written complaint Ex.P4) in Police Station Arjunda. In his cross examination this witness has admitted that whenever he visited the matrimonial house of the deceased the Appellant and his family members gave him proper respect and whenever he asked to send back the deceased with him to her paternal house they sent her with him He has further admitted that the deceased had run out of her matrimonial house once only and had made a complaint of marpeet with her. Since such quarrels took place in every houses he did not make any report. This witness has further admitted that it is the Appellant who had taken the deceased to the District Hospital Durg and thereafter to Sector 9 Hospital Bhilai and the Appellant himself borne all the expenses of treatment of the deceased Sushila mother of the deceased has deposed that the deceased had come to her maternal house after 1 year of her marriage and at that time she had told her that whenever she had been returning late after fetching water her mother in law used to suspect on her character and on this issue the Appellant used to commit marpeet with her. This witness has further deposed that at that time the deceased stayed at her maternal house for 8 days and thereafter she returned to her matrimonial house. Thereafter this witness came to know that the deceased set herself on fire. This witness has further deposed that after getting information she went to see the deceased. At that time the deceased told her that on the date of incident a serious quarrel had taken place with her mother in law. At that time the Appellant came and asked her to prepare tea for him and herself. At that time the Appellant told her that when she had gone to her maternal house in anger at that time he was feeling happy. The Appellant also told her that why does not she die and he further told that the person going to die does not take tea. On this she poured kerosene on her and set herself on fire. This witness has also admitted the fact that no quarrel took place between the Appellant and the deceased for about 1 year after their marriage. Whenever husband of this witnesswent to the matrimonial house of the deceased to take her back to her paternal house he was given proper respect there. This witness has further admitted that quarrels were taking place only on the dispute of fetching water This witness has further admitted that such kind of dispute takes place in every houses. She has further admitted that on the date of incident also the dispute between the Appellant and the deceased had taken place for preparing tea. She has further admitted that after the incident it was the Appellant who brought the deceased to the hospital for treatment and all the expenses of her treatment were borne by him. She has further admitted that in the hospital the deceased had given a statement before the Executive Magistrate that she burnt while preparing tea Punitramwho was a teacher of the deceased has deposed that 1 week prior to the incident the deceased had run out of her matrimonial house and came to her maternal house. At that time she had come to his house also to meet him. At that time she had told him that her husband Appellant and mother in law suspect on her character and abuse her. This witness has further deposed that when they had gone to the District Hospital Durg police officials had inquired from the deceased. At that time first the deceased had told them that she burnt while preparing tea. On being asked again politely the deceased told them that while taking tea a quarrel had taken place between her and the Appellant. On this she told the Appellant that he always abuses her and commits marpeet with her therefore she will die. On this the Appellant told her that the person going to die does not take tea. If she wants to die she can die. On this she could not control her anger and in anger she poured kerosene on her and set herself on fire According to this witness the deceased also told him that the Appellant had asked her that she should tell that she burnt while burning stove otherwise he will not take her to the hospital for treatment and therefore she had made such statement. During cross examination this witness has admitted that when for the first time he met with the deceased in the hospital at that time on being asked by him the deceased had told him that her dying declaration had been recorded in which she had stated that she burnt while preparing tea. This witness has further deposed that when he asked again then the deceased told him that she burnt while preparing tea on stove Dr. V.K. Saohas stated that on on 6.6.1999 an Executive Magistrate had come to record dying declaration of the deceased At that time he was present on duty. On being asked by the Executive Magistrate he had examined the deceased and found that she was fully fit to make statement and therefore he had given a fitness certificate in this regard. This witness has denied the suggestion that at the time of recording of the dying declaration of the deceased her relatives were present there. This witness has further denied the suggestion that he gave the fitness certificate under pressure of the relatives of the deceased Executive Magistrate Naib Tahsildar U.S. Agrawalhas also deposed that on 6.6.1999 he had gone to the District Hospital Durg for recording dying declaration of the deceased. At that time he saw that the deceased was in a condition to make statement Thereafter he obtained a fitness certificate in this regard from the doctor and thereafter he recorded dying declarationof the deceased. According to the contents of the dying declaration Ex.D2) on 6.6.1999 at 4:00 p.m. the deceased was preparing tea on a stove at her matrimonial house. At that time a burning chimney kept on her back on a height fell over her as a result of which fire caught her clothes and she burnt. Executive Magistrate U.S. Agrawalhas further deposed that on being asked by him the deceased told that nobody set her on fire and there was cordial relation between her and the Appellant and mother in law. On a minute examination of the above evidence I find that there are two sets of evidence regarding dying declaration. One is the statement declaration made before Executive Magistrate U.S. Agrawaland other is the oral dying declaration made by the deceased before her father Sureshmother Sushila PW5) and her one teacher Punitramrecorded by Executive Magistrate U.S. Agrawalit is evident that before recording such statement he had duly obtained a fitness certificate from the doctor regarding mental fitness of the deceased to make a statement. Deputy Superintendent of Police S. Bramhehas also admitted the fact that on 6.6.1999 the Executive Magistrate had recorded dying declaration of the deceased. However the dying declarationrecorded by the Executive Magistrate could not be filed by the Investigating Officer along with the charge sheet. Sushila mother of the deceased has also admitted the fact that in the District Hospital the deceased had made a statement before the Executive Magistrate that she burnt while preparing tea. Both Dr. V.K. Saoand Executive Magistrate U.S. Agrawal were government servants. They had no relation with the Appellant or the deceased Therefore there is no reason to believe that the dying declaration Ex.D2) was recorded by the Executive Magistrate under any pressure. Though Suresh Sushila and Punitram PW7) have stated that when they had gone to the District Hospital to see the deceased at that time the deceased had given an oral dying declaration that while taking tea a dispute had taken place with the Appellant and due to quarrels being taken and she was being beaten daily she got harassed and poured kerosene on her and set herself on fire. According to the case of prosecution the deceased died on 11.6.1999 and one day before i.e. on 10.6.1999 her father Suresh had made written complaint Ex.P4). But in the written complaintno fact is mentioned that the deceased as discussed above made any such statement before SureshSushilaand PunitramSushila and Punitramdeath of the deceased was accidental. Even if for the sake of argument it is considered that death of the deceased was not accidental and was suicidal material ingredients of the offence under Section 306 of the Indian Penal Code are missing in this case because from the evidence of the prosecution itself it is well established that there was cordial relation between the Appellant and the deceased till 1 year from their marriage. Till that time there was no complaint by the deceased. After 1 year from the marriage when the deceased ran out of her matrimonial house and came to her maternal house for the first time she told about committing of marpeet with her. But both her parents Sureshand Sushilahave admitted that such type of dispute usually takes place in every houses and therefore they did not make any complaint. From the statements of Sureshand Sushilait also appears that whenever Sureshvisited the matrimonial house of the deceased he was given proper respect there and on all those occasions the deceased never made any complaint of her being subjection to ill treatment or marpeet with her. Moreover immediately after the incident the Appellant took the deceased to the District Hospital Durg and thereafter for better treatment he took her to Sector 9 Hospital Bhilai. There is no evidence on record to show that the Appellant had been continuously ill treating the deceased or committing marpeet with her or subjecting her to harassment Therefore material ingredient of the offence i.e. instigation as defined under Section 107 of the Indian Penal Code is missing in this case. Thus the finding of the Trial Court is not in accordance with law and the evidence available on record. The Appellant is entitled to get benefit of doubt. Consequently the appeal is allowed. The judgment under challenge is set aside. The Appellant is acquitted of the charge framed against him. (Arvind Singh Chandel JUDGE Sd 

Summary: Dying declaration in writing when issued by Executive Magistrate without any pressure, the written dying declaration holds a much higher evidentiary value than the oral dying declaration. A single-judge bench comprising of Justice Arvind Singh Chandel adjudicating in the matter of Sanjay Sahu v. State of Chhatisgarh (CRIMINAL APPEAL No.222 of 2021) In the present case, the Appellant was convicted under section 306 of IPC and was granted Rigorous Imprisonment for 3 years and a fine of Rs.2,000/-. The Appellant and deceased marriage was solemnized 3 years before the death of the deceased. After 1 year of marriage, cruelty was inflicted upon the deceased by her husband and mother-in-law. 1 week before the incident the Deceased (Mainabai) left her matrimonial and went to her paternal house and narrated the entire about the disputes she was facing in her matrimonial house. Thereafter the family members of the Appellant brought her back to their matrimonial home, but on 06.06.1999 another dispute took place between the couple, and the deceased poured kerosene on herself and set herself on fire. She was immediately taken to the District hospital in Durg and again to sector-9 Hospital, Bhilai for better treatment but she succumbed to death due to her injuries on 11.06.1999. Based on the written complaint and the complaint lodged by the deceased’s father, the police filed an FIR against the Appellant and was implicated of the charges. The Appellant denied the guilt and pleaded innocence. He stated that there was a cordial relationship between the couple and her death was accidental. The trial court acquitted the mother-in-law and sentenced the Appellant under the charges. The Appellant in this appeal has argued that the order of conviction passed against him was passed without sufficient evidence and also argued that the prosecution has suppressed the dying declaration which says that the incident was accidental and did not submit it along with the charge-sheet. He also asserts that the statement made by the parents of the deceased based on oral dying declaration is a weak evidence whereas a written dying declaration possesses a much higher evidentiary value and also when the written dying declaration was issued by the Executive Magistrate, the deceased was under no coercion. And hence the findings of the Trial court are not in accordance with the law and even if the deceased committed suicide there was no evidentiary record to show that Mainabai was instigated or abetted to commit suicide as defined under Section 107 of the Indian Penal Code. The Respondent denied all the claims of the Appellant and controverted that the conviction was strictly in accordance with the law. It cannot be said that the document was suppressed by the prosecution and the Appellant cannot gain any benefit out of this. The court relied upon Gangula Mohan Reddy v. State of Andhra Pradesh, M. Mohan v. State &amp; Samadhan Khudaka Koli case and upon a prudent consideration of all the evidence, witnesses, and minute details of the present case, the court concluded that both sides presented evidence regarding the dying declaration were contradictory to each other. The Declaration recorded by the Executive Magistrate was made under no pressure and since the magistrate and according to the prosecution witnesses have stated that when they had gone to the District Hospital to see the deceased, at that time, the deceased had given an oral dying declaration that while taking tea a dispute had taken place with the Appellant and due to quarrels being taken and she being beaten daily she got harassed and poured kerosene on her and set herself on fire. According to the case of the prosecution, the deceased died on 11.6.1999, and one day before, i.e., on 10.6.1999, the father of the deceased made a written complaint and in such complaint, no fact is mentioned that the deceased has made any such statements before the Prosecution witnesses. But the contents in written dying declarations cannot be ruled out. The court also stated that” material ingredients of the offence under Section 306 of the Indian Penal Code are missing in this case because from the evidence of the prosecution itself it is well established that there was cordial relation between the Appellant and the deceased till 1 year from their marriage. Till that time, there was no complaint by the deceased.” Also the parents of the deceased stated that the quarrels usually takes place in every houses and, therefore, they did not make any complaint. From the statements of the parents , “it also appears that whenever the father of the deceased visited the matrimonial house of the deceased, he was given proper respect there and on all those occasions, the deceased never made any complaint of her being subjection to ill-treatment or marpeet with her. Moreover, immediately after the incident, the Appellant took the deceased to the District Hospital, Durg and thereafter for better treatment he took her to Sector-9 Hospital, Bhilai. There is no evidence on record to show that the Appellant had been continuously ill-treating the deceased or committing marpeet with her or subjecting her to harassment. Therefore, material ingredient of the offence, i.e., instigation as defined under Section 107 of the Indian Penal Code is missing in this case. Thus, the finding of the Trial Court is not in accordance with law and the evidence available on record. The Appellant is entitled to get benefit of doubt.”