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2008 DIGILAW 194 (CHH)

SANJEET KUMAR DEWANGAN v. STATE OF C. G.

2008-08-04

RAJEEV GUPTA, S.K.SINHA

body2008
JUDGMENT Sunil Kumar Sinha, J. :_ 1. This appeal is directed against the judgment of conviction and order of sentence dated 10.01.2003 passed by the 3rd Additional Sessions Judge (FTC), Kanker in Sessions Trial No. 461/2001, whereby, the appellant has been convicted under Section 302 I.P.C. and sentenced to undergo imprisonment for life and to pay a fine of Rs.500/-, in default of payment of fine, to further undergo R.I for 3 months. 2. The brief facts are that the deceased namely Vimla Bai was wife of the appellant. She was married with the appellant in February, 2001. On 06.06.2001, she received bum injuries to the extent, of 90%. She was taken to Primary Health Centre, Charama, from where a report was sent to the concerned police station through the vaccinator of the hospital which was reduced into writing vide Rosnamchasahna No. 189 dated 06.06.2001. Looking to her critical condition, her dying declaration Ex.P- 15 was recorded by the Executive Magistrate, Charama. Vimla Bai made statement that she has been burnt by her husband after pouring kerosene oil on her. The investigation was conducted and half burnt cloths, chimney containing kerosene oil, match-box, and other articles were seized under Ex.-P/3, P/4 & P/5. Since the condition of Vimla Bai was deteriorating, she was taken to Mashih hospital, Dharntari, where another dying declaration EX.P/20 was recorded by another Executive Magistrate on the same day i.e. 06.06.2001 . Vimla Bai succumbed to those injuries on 16.06.2001. After her death, her dead body was sent for post -mortem examination and a report Ex. -P /26 was obtained. The Doctor opined that the cause of death was toxemia due to 90% burn injuries. 3. After usual investigation. charge-sheet was filed in the Court of C.J.M., Kanker who in turn committed the case to the Court of Sessions, Kanker from where it was received on transfer by the 3rd Additional Sessions Judge (FTC), Kanker who conducted the trial and convicted and sentenced the accused/appellant, as aforementioned. 4. The conviction of the appellant is based on the two dying declarations recorded by the Executive Magistrates and oral dying declarations made by the deceased before Govind (PW-4), Nakul Singh (PW-5) & Kotwar-Nileshwar (PW-6) as also to her father Ramlal (P.W.7). 5. 4. The conviction of the appellant is based on the two dying declarations recorded by the Executive Magistrates and oral dying declarations made by the deceased before Govind (PW-4), Nakul Singh (PW-5) & Kotwar-Nileshwar (PW-6) as also to her father Ramlal (P.W.7). 5. Learned counsel for the appellant argued that the two dying declarations EX.-P/15 & P/20 as also the oral dying declaration before the said three witnesses are unreliable and the learned trial Judge erred in law in placing reliance on such documents and the oral testimonies of PW-4 Govind, PW-5 Nakul Singh, PW-6. Kotwar Nileshwar and P.W.7 Ramlal (father of the deceased). 6. On the other hand, learned State Counsel opposed these arguments and supported the judgment of the trial Court. 7. We have heard the learned counsel for the parties at length and have also perused the records of the sessions trial. 8. The principles regarding testing veracity of the dying declaration are well settled. Since the admissibility of the dying declaration is not subject to the cross examination of the maker, a strictest scrutiny and closest circumspection is required by the Court before acting upon it. In the matter of K.R. Reddy and another Vs. The Public Prosecutor, the Apex Court observed that while great solemnity and sanctity is attached to the words of a dying man because a person oil the verge of death is not likely to tell lies or to concoct a case so as to implicate an innocent person, yet the court has to be on guard against the statement of the deceased being a result of either tutoring, prompting or a product of his imagination. It has further been observed that the Court must be satisfied that the deceased was in a fit state of mind to make the statement after the deceased had a clear opportunity to observe and identify his assailants and that he was making the statement without any influence or rancour.1t has also been observed that once the court is satisfied that the dying declaration is true and voluntary it can be sufficient to found the conviction even without any further corroboration. In this very judgment, the Apex Court further observed that in order to test the reliability of a dying declaration, the Court has to keep in view the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the facts stated had not been impaired at the time he was making the statement by circumstances beyond his control; the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties. 9. The Apex Court in the matter of P. V. Radhakrishna Vs. State of KarnataW, held that the general principle on which this spices of evidence is admitted is that they are declarations made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced and the mind is induced by the most powerful considerations to speak the truth. The principle on which the dying declaration is admitted in evidence is indicated in legal maxim "nemo moriturus proesumitur mentiri - a man will not meet his maker with a lie in his mouth." 10. If we examine the evidence of this case in light of the above principles, it would appear that the first dying declaration was recorded on 06.06.2001 at 8.00 a.m. It was recorded by Mr. K.K. Behar (PW -14) who was working as Tehsildar & Executive Magistrate, Charama. He deposed that on 06.06.2001 at about 8.15 a.m., he obtained certificate of the Doctor regarding position of the deceased to give dying declaration and thereafter, he recorded the dying declaration. The contents of the dying declaration as also the contents of the evidence of this witness would show that the dying declaration was recorded in question and answer form and in answer to question No.5, the deceased replied that her husband poured kerosene oil on her and thereafter, set her on fire. In the cross-examination of this witness, nothing could be brought on record to show that either the dying declaration was suspicious or such dying declaration was not given by the declarant. In the cross-examination of this witness, nothing could be brought on record to show that either the dying declaration was suspicious or such dying declaration was not given by the declarant. The second dying declaration (Ex.P/20) of the deceased was recorded on the same day at about 8.00 p.m. when she was admitted in Mashih Hospital, Dhamtari. This was recorded by PW.10 Mr. D.R. Margiya who was Executive Magistrate, Dhamtari. The contents of the dying declaration (Ex.-P/20) would show that this was also in question and answer form and in reply to question No.2, the deceased made declaration that at about 5.00 a.m. her husband poured kerosene oil on her and thereafter, he set her on fire by a match-stick. The Executive Magistrate, before recording dying declaration of the deceased, has also obtained a certificate by the Doctor certifying that the patient was in a condition to give statement. PW10 Mr. D.R. Margiya has proved this dying declaration by giving his evidence before the trial Court and the defence has not been able to elicit any such circumstance which may suggest or point out towards the untruthfulness of such declaration recorded by PW -10. 11. In view of the above evidence on record, it is apparent that on 06.06.2001, two dying declarations of the deceased were recorded by the two different Executive Magistrates at two different places one at Charama and the other at Dhamtari and in both the dying declarations, the deceased had made consistent statements about putting her to fire by her husband after pouring kerosene oil on her. Therefore, on the basis of these two dying declarations, it is established that the deceased was put to fire by her husband at about 5.00 a.m. on 06.06.2001 due to which she received 90% bum injuries and ultimately succumbed to those injuries in Mashih Hospital, Dhamtari on 16.06.2001 during the course of her treatment. These written dying declarations are supported by the oral dying declaration of the deceased, which she made before Govind (PW -4), Nakul Singh (PW-5) & Kotwar Nileshwar (PW-6) who have deposed that when they met Vimla Bai in the village after the incident, she categorically stated that her husband poured kerosene oil on her and set her on fire. These written dying declarations are supported by the oral dying declaration of the deceased, which she made before Govind (PW -4), Nakul Singh (PW-5) & Kotwar Nileshwar (PW-6) who have deposed that when they met Vimla Bai in the village after the incident, she categorically stated that her husband poured kerosene oil on her and set her on fire. Though these witnesses have been put to lengthy cross-examinations, but nothing could be brought on record which may assail the credibility of these witnesses in relation to oral dying declaration made by the deceased Vimla Bai before them. 12. Apart from the above evidence, there is also evidence of the father of the deceased namely- Ramlal (PW - 7), who deposed in Para-4 of his evidence that when he met Vimla Bai in Charama Hospital and inquired from her, she told him that her husband has set her on fire after pouring kerosene oil upon her. This version of PW -7 has also not been assailed in his cross-examination and the same remains intact against the accused/appellant. 13. For the foregoing discussions, we do not find any force in the arguments advanced by the learned counsel for the appellant. The appellant has rightly been convicted for committing the murder of his wife by setting her on fire after pouring kerosene oil on her. 14. There is no merit in the appeal filed by the appellant. The appeal deserves to be and is accordingly dismissed. Appeal Dismissed.