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2013 DIGILAW 63 (CHH)

RAJENDRA NARANG v. STATE OF C. G.

2013-02-14

RADHE SHYAM SHARMA, SUNIL KUMAR SINHA

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JUDGMENT As per Hon'ble Shri Sunil Kumar Sinha, J.:- 1. This appeal is directed against judgment dated 30-3-2006 passed in Sessions Trial No.265/2005 by 14th Additional Sessions Judge (FTC), Raipur (CG). By the impugned judgment, the appellant has been convicted under Section 302 IPC and sentenced to undergo imprisonment for life and to pay fine of Rs.2,000/- with default sentence of R.I. for 6 months. 2. The facts, briefly stated, are as under: Deceased Santoshibai was wife of the appellant. She was married to the appellant 3 years prior to the date of incident, i.e., 7-6-2005. Elder sister of Santoshibai (deceased), namely, Sonkunwar (PW-6) was married to the elder brother of the appellant, namely, Ramesh Kumar Narang (PW-3). All were jointly residing in Village Baraunda. On 7-6-2005, at about 4-5 P.M., Santoshibai (deceased), her sister Sonkunwar (PW-6) and Jeth Ramesh Kumar Narang (PW-3) were present in their house. The allegations are that appellant Rajendra Narang came to the house and started quarreling with the deceased. He assaulted the deceased and thereafter poured kerosene on her body and set her on fire. The above act was committed in the kitchen of the house. It was witnessed by Sonkunwar (PW-6). When Santoshibai (deceased) came out from the kitchen in burning condition, Ramesh Kumar Narang (PW-3) poured water and extinguished her fire. A local compounder was called who gave first aid and thereafter the deceased was taken to Medical College Hospital, Raipur. Dr. (Smt.) Kalpana (PW-8) examined the deceased and admitted her in the burn ward. A dying declaration (Ex.P-1) was recorded by Executive Magistrate, Harvansh Singh Miri (PW-2) on 9-6-2005. In the dying declaration, the deceased made positive allegations against the appellant and said that she was put to fire by the appellant by pouring kerosene on her body. Mother and brother of the deceased, namely, Kumaribai (PW-5) and Beniram (PW-4) had also met her in the hospital. Shyamlal (PW-7) had also met her, and the deceased had made oral dying declaration before them. The deceased died in the hospital on 12-6-2005 during the course of her treatment. Inquest (Ex.P-2) was prepared and post mortem was conducted by Dr. S.N. Manjhi (PW-9) and Dr. Smt. Sarita Dubey (PW-11). The autopsy surgeons opined that the deceased had sustained 51% burn injuries and the cause of death was cardio-respiratory arrest as a result of burn injuries and complications thereof. Inquest (Ex.P-2) was prepared and post mortem was conducted by Dr. S.N. Manjhi (PW-9) and Dr. Smt. Sarita Dubey (PW-11). The autopsy surgeons opined that the deceased had sustained 51% burn injuries and the cause of death was cardio-respiratory arrest as a result of burn injuries and complications thereof. The post mortem report is Ex.P-9. The case of the prosecution was based on the direct evidence of Sonkunwar (PW-6) and written dying declaration (Ex.P-1) before the Executive Magistrate as also the oral dying declaration made before Shyamlal (PW-7), Beniram (PW-4) and Kumaribai (PW-5). The learned Sessions Judge relied on the said evidence and convicted and sentenced the appellant as above. Hence this appeal. 3. Mr. Abhijeet Sarkar, counsel appearing on behalf of the appellant has argued that the certificate about the fitness of the deceased was given by Dr. Krishna (PW-15), who was a PG Student in Surgery, therefore, it was not sufficient and the dying declaration became suspicious. He also argued that the Sessions Judge fell into error in not accepting the version of the 3 defence witnesses who had stated that the deceased had made oral dying declaration before them that the fire accidentally caught her saree while burning the chimney. 4. On the other hand, Mr. Vinod Tekam, Panel Lawyer appearing on behalf of the State/respondent, opposed these arguments and supported the Judgment passed by the Sessions Court. 5. We have heard counsel for the parties and have also perused the records of sessions case. 6. Harvansh Singh Miri (PW-2) is the Executive Magistrate, who had recorded the dying declaration of the deceased. The dying declaration was recorded at about 9:45 P.M. on 9-6-2005. It was recorded in presence of Dr. Krishna (PW-15). Harvansh Singh Miri (PW-2) has deposed that he had asked many questions from the deceased. On his question, the deceased had told him that she was admitted in Medical College Hospital, Raipur. When he asked as to when the incident took place and who had admitted her in the hospital, the deceased replied that she was brought by her husband and many villagers including Sarpanch etc. She told that the incident took place on Tuesday. On his question, the deceased had told him that she was admitted in Medical College Hospital, Raipur. When he asked as to when the incident took place and who had admitted her in the hospital, the deceased replied that she was brought by her husband and many villagers including Sarpanch etc. She told that the incident took place on Tuesday. On being asked as to how the incident took place, she replied that on the fateful day in the evening at about 4-5 P.M., her husband came in drunken condition, quarreled with her and thereafter set her on fire by a chimney by pouring kerosene on her body. She stated that brother of her husband had poured water on her to extinguish the fire. Thereafter, her husband also tried to save her. She also told that her husband most oftenly used to quarrel with her. 7. Harvansh Singh Miri (PW-2) was put to lengthy cross-examination by the defence. Nothing material could be elicited in his cross-examination on which any infirmity in the dying declaration could be assigned. No doubt Dr. Krishna (PW-15), who gave certificate in the dying declaration, was a PG Student in Medical College, Raipur and was attending the burn unit at the relevant time, but only on account of he being not a regular doctor of the hospital, the sanctity of the dying declaration cannot be doubted. He was a medical graduate and was a doctor on duty on the said date in the burn unit, and thus, was fully qualified to give a certificate regarding mental states of the deceased. He has certified making endorsement in clear words that the deceased was fully conscious at the time of recording of the dying declaration. In a reference made before the 5 judges in Laxman Vs. State of Maharashtra (2002) 6 SCC 710 , the Supreme Court held as under: "A dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. There is no requirement of law that a dying declaration must necessarily be made to a Magistrate and when such statement is recorded by a Magistrate there is no specified statutory form for such recording. There is no requirement of law that a dying declaration must necessarily be made to a Magistrate and when such statement is recorded by a Magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit sate of mind. Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise." 8. In the instant case, the Executive Magistrate has firstly asked introductory questions to the deceased to which the deceased properly responded. Even the deceased stated about the day and time of the incident. She also deposed as to who were present in the house at the relevant time. After asking these preliminary questions, the Executive Magistrate had asked about the incident, which the deceased described in clear words. The answers to the preliminary questions were for the purpose of satisfaction of the Magistrate as to whether the deceased was in a fit state of mind. When the Magistrate became satisfied with the answers to the preliminary questions that the deceased was responding properly and she was in a fit state of mind, then only the remaining part (main part) of the dying declaration was recorded. This shows that the Magistrate had recorded the dying declaration after his satisfaction that the deceased was fully conscious and she was in a position to record the dying declaration. Thus, certification of the doctor taken by the Executive Magistrate was with a view of abundant caution and if it was given by a PG Student who was on duty, it shall make no difference in the case. 9. The Magistrate had also obtained thumb impression of the deceased on the dying declaration. The deceased got burn injuries on 7-6-2005 and the dying declaration was recorded on 9-6-2005 and thereafter the deceased died on 12-6-2005. 9. The Magistrate had also obtained thumb impression of the deceased on the dying declaration. The deceased got burn injuries on 7-6-2005 and the dying declaration was recorded on 9-6-2005 and thereafter the deceased died on 12-6-2005. Thus, it is not a case in which the deceased had died just after recording of the dying declaration or that the dying declaration was recorded in haste hurry manner. Thus, we have no reason to disbelieve the credibility of the dying declaration on the above grounds. 10. Beniram (PW-4) and Kumaribai (PW-5) are brother and mother of the deceased. They had visited the hospital where the deceased was admitted. They saw that the deceased was admitted in room No.17 of the burn unit of the hospital. When they asked the deceased as to how she got burn injuries, the deceased told them that she was put to fire by the appellant after pouring kerosene on her body. 11. Shyamlal (PW-7) is an independent witness. He was the resident of same locality. He met the deceased in Medical College Hospital on the third day of the incident. The deceased had told him that she was put to fire by her husband by pouring kerosene on her body. 12. The said statements made by the deceased to the above 3 witnesses were oral dying declarations of the deceased and were admissible under Section 32 of the Evidence Act. Nothing material could be brought in the cross-examinations of these witnesses on which their testimonies may be discarded. Therefore, along with the evidence of written dying declaration before the Executive Magistrate, there was also evidence of oral dying declarations of the deceased before the said 3 witnesses. 13. Three defence witnesses were examined to show that just after the incident the deceased had stated to them that fire caught her saree while she was burning chimney. Khumanrao Dhruw (DW-1) was a compounder with a local doctor. According to him, when he had visited the house of the deceased along with other compounders, the deceased had told him like that Pramod Kumar Ratre (DW-2) was Up-Sarpanch and Shukla Bandhe (DW-3) was Sarpanch. They also deposed in similar fashion. The Sessions Judge has discussed their evidence in paragraphs 29 to 34 of the judgment and has held that their evidence was contradictory on various points and they had given different versions. They also deposed in similar fashion. The Sessions Judge has discussed their evidence in paragraphs 29 to 34 of the judgment and has held that their evidence was contradictory on various points and they had given different versions. The Sessions Judge has also held that their versions were unnatural. She has assigned many reasons quoting various instances from their evidence. We have gone through the contents of the evidence of above defence witnesses. We are of the view that their evidence relating to the oral dying declarations of the deceased has been rightly held to be unreliable by assigning cogent reasons. Moreover, a possibility of the victim lady not making positive allegations against the husband at the initial stage just after the incident, on account of expectancy of her life, can also not be fully ruled out. It is just possible that at the initial stage the victim, in expectancy of her life, may not had chosen to make allegations against the husband, but, on a later stage, when she could have realized that the expectancy of her life is more lesser, she made a true declaration before the Executive Magistrate. We are of the view that the learned Sessions Judge, in light of the above facts and circumstances of the case, had rightly rejected the so called evidence of oral dying declarations before the 3 defence witnesses. 14. Apart from the evidence of dying declaration, there is evidence of Sonkunwar (PW-6), who was an eyewitness to the incident. The deceased was real sister of Sonkunwar (PW-6). 2 Sisters were married in the same family. Husband of Sonkunwar (PW-6) was Jeth of the deceased. Sonkunwar (PW-6) deposed that on the fateful day, when she entered inside the kitchen, she saw that the appellant poured kerosene on the deceased and thereafter set her on fire by a burning chimney. When she tried to make cries, the appellant had chased her. The appellant had beaten the deceased also. Though many questions were put to her in the cross-examination, but her above evidence regarding setting the deceased on fire by the appellant remained intact. Therefore, it was not a case simply based on dying declarations of the deceased, but there was an eyewitness also, whose testimony was held to be reliable by the Sessions Judge. 15. For the foregoing reasons, we do not find any substance in the appeal. Therefore, it was not a case simply based on dying declarations of the deceased, but there was an eyewitness also, whose testimony was held to be reliable by the Sessions Judge. 15. For the foregoing reasons, we do not find any substance in the appeal. The appeal is liable to be dismissed and is hereby dismissed. Appeal Dismissed.