Research › Search › Judgment

Chhattisgarh High Court · body

2013 DIGILAW 101 (CHH)

SHANKAR BARETH v. STATE OF C. G.

2013-03-12

RADHE SHYAM SHARMA, SUNIL KUMAR SINHA

body2013
JUDGMENT As per Hon'ble Shri Sunil Kumar Sinha, J.- 1. This appeal is directed against the judgment dated 6th of July, 2007 passed in Sessions Trial No. 270/2006 by the 8th Additional Sessions Judge (FTC), Bilaspur. By the impugned judgment, the appellant has been convicted u/s 302 IPC and sentenced to undergo imprisonment for life and to pay fine of Rs. 300/- with default sentence of S.I. for 1 month. 2. The facts, briefly stated, are as under:- Deceased- Sita Bai was wife of accused- Rajkumar (A-2). They were residing in a separate house. Appellant- Shankar Bareth (A-1) is father-in-law and Durpati Bai (A-3) is mother-in-law of the deceased. The deceased sustained burn injuries in the intervening night of 18th-19th of April, 2006. She was admitted in Chhattisgarh Institute of Medical Science (CIMS), Bilaspur at about 4.00 a.m. on 19.4.2006. An information was sent to the concerned police outpost and a dying declaration of the deceased was recorded by the police on 19.4.2006. In dying declaration, the deceased had stated that she had put herself on fire on account of ill-treatment by the accused persons (A-1 to A-3). Later on, another dying declaration (Ex.-P/2) of the deceased was recorded by the Executive Magistrate, M.R. Gaikwad (PW-5), at about 6.03 p.m. on 19.4.2006. In the said dying declaration, she made allegations against her father-in-law, Shankar Bareth (A-1). The deceased died during the course of her treatment on 23.4.2006. Jhadi Ram (PW-l), Pramila (PW-2) and Dewari (PW-3), father, mother and uncle of the deceased, had met the deceased in the hospital. Pramila (PW-2) claimed that the deceased had made oral dying declaration taking the names of all the three accused persons, whereas, Dewari (PW-3) claimed that the deceased told him the name of two accused persons as her assailants who poured kerosene on her and put her on fire. The Sessions Judge relied on written dying declaration (Ex.-P/2) and held that it was proved that the appellant (A-1) alone was responsible for putting the deceased on fire. The appellant (A-1) thus was convicted u/s 302 IPC and the two other accused persons i.e. husband and mother-in-law (A-2 and A-3) were acquitted of the charges framed against them. 3. Mr. The Sessions Judge relied on written dying declaration (Ex.-P/2) and held that it was proved that the appellant (A-1) alone was responsible for putting the deceased on fire. The appellant (A-1) thus was convicted u/s 302 IPC and the two other accused persons i.e. husband and mother-in-law (A-2 and A-3) were acquitted of the charges framed against them. 3. Mr. Rajkumar Gupta, counsel appearing on behalf of the appellant, has argued that the dying declaration was not properly proved; it comes in the evidence of Jhadi Ram (PW-1) that the deceased was throughout unconscious after 11.00 a.m. of 19.4.2006, therefore, the dying declaration becomes suspicious; no Doctor has been examined in this matter; the certificate given on the dying declaration (Ex.-P/2) is also not proved; and the postmortem report is also not proved. 4. Ms. Madhu Nisha Singh, Panel Lawyer appearing on behalf of the State, has opposed these arguments and supported the judgment passed by the Sessions Court. 5. We have heard counsel for the parties. 6. The dying declaration (Ex-P/2) was recorded by Executive Magistrate, M.R. Gaikwad (PW-5). According to the contents of the dying declaration, it was recorded at about 6.03 p.m. on 19.4.2006. In the said dying declaration, the deceased had made allegations that she was put on fire by her father-in-law (A-1) by pouring kerosene on her body. There is an endorsement of the certification of the Doctor in the dying declaration, but, the Doctor was not examined to prove the above certification. M.R. Gaikwad (PW-5) admitted in Para-4 of his cross-examination that the above certificate was taken by him after recording the entire dying declaration of the deceased. 7. Jhadi Ram (PW-1) is father of the deceased. Paragraph No. 6 of his cross-examination is important. He deposed that the Magistrate had recorded the dying declaration at about 12.00 Noon just on the next day of the incident. He further added that after recording the above dying declaration at about 12 Noon, the deceased throughout remained unconscious till her death. 8. In appreciation of the above evidence, we find that according to the father of the deceased, her dying declaration was recorded by the Magistrate at about 12 Noon on 19.4.2006. Whereas, the dying declaration (Ex.-P/2) shows that it was recorded at about 6.03 p.m. on 19.4.2006. 8. In appreciation of the above evidence, we find that according to the father of the deceased, her dying declaration was recorded by the Magistrate at about 12 Noon on 19.4.2006. Whereas, the dying declaration (Ex.-P/2) shows that it was recorded at about 6.03 p.m. on 19.4.2006. If the deceased was throughout unconscious after 12 Noon of 19.4.2006, how her dying declaration could have been recorded at about 6.03 p.m. on the said date. Jhadi Ram (PW-1) has admitted in clear words that the deceased throughout remained unconscious from 12 Noon of 19.4.2006 till her death. In light of the above evidence available on record, the dying declaration (Ex.-P/2) of the deceased appears to be suspicious. 9. That apart, it is important to note that no Doctor was examined by the prosecution to prove either the certification of the dying declaration or the MLC report or the postmortem report of the deceased. This is also an infirmity in the prosecution case. 10. In Atbir Vs. Government of NCT of Delhi (2010) 9 SCC 1 , the Supreme Court culled out following 10 principles relating to the dying declaration:- (i) Dying declaration can be the sole basis of conviction if it inspires the full confidence of the court. (ii) The court should be satisfied that the deceased was in a fit state of mind at the time of making the statement and that it was not the result of tutoring, prompting or imagination. (iii) Where the court is satisfied that the declaration is true and voluntary, it can base its conviction without any further corroboration. (iv) It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. (v) Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence. (vi) A dying declaration which suffers from infirmity such as the deceased was unconscious and could never make any statement cannot form the basis of conviction. (vii) Merely because a dying declaration does not contain all the details as to the occurrence, it is not to be rejected. (viii) Even if it is a brief statement, it is not to be discarded. (vii) Merely because a dying declaration does not contain all the details as to the occurrence, it is not to be rejected. (viii) Even if it is a brief statement, it is not to be discarded. (ix) When the eyewitness affirms that the deceased was not in a fit and conscious state to make the dying declaration, medical opinion cannot prevail. (x) If after careful scrutiny, the court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it the basis of conviction, even if there is no corroboration. 11. The conviction is solely based on the dying declaration of the deceased. We have examined the dying declaration in light of the above principles. We are of the view that the dying declaration (Ex.-P/2) suffers from various infirmities and the conviction based on the solitary evidence of dying declaration cannot be sustained. 12. For the foregoing reasons, the appeal is allowed. The conviction and sentence awarded to the appellant u/s 302 IPC are set-aside. The appellant is acquitted of the charges framed against him. It is stated that the appellant is in jail. He be released forthwith, if not required in any other case. Appeal Allowed.