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2014 DIGILAW 151 (CHH)

HEMLAL v. STATE OF C. G.

2014-04-09

INDER SINGH UBOWEJA, SUNIL KUMAR SINHA

body2014
JUDGMENT As per Hon'ble Shri Sunil Kumar Sinha, J. :- 1. This appeal is directed against the judgment dated 10th of December, 2008, passed in Sessions Trial No. 73/2007 by the Sessions Judge, Kabeerdham (Kawardha) (Chhattisgarh). By the impugned judgment, the appellant has been convicted under Section 302 IPC and sentenced to undergo imprisonment for life. 2. The facts, briefly stated, are as under: 2.1 Deceased- Laxmibai was a deserted lady. After a long period of desertion, she performed Chudi marriage (second marriage) with the appellant one month prior to the date of incident, which took place on 23.07.2007. At that time, the appellant and the deceased were residing in the house of parents of the deceased in village-Harinchhapara. 2.2 The case of the prosecution is that on 23.03.2007, when the parents of the deceased had gone to work in the field, the appellant forcefully administered poison (insecticide) on the deceased and thereafter, he ran away from her house. When the deceased started vomiting, her mother, Sunti Bai (PW-1) and brother, Sanjay Kumar (PW-2) came to the house, before whom the deceased made oral dying declaration. The deceased was taken to the Hospital, where, she was declared dead. 2.3 Information was sent to the concerned Police and Merg Intimation (Ex. P/8) was registered. 2.4 Inquest (Ex. P/1) on the dead body was conducted by Executive Magistrate, Mr. S.R. Diwan (PW-12). Thereafter, the dead body was sent for postmortem. The postmortem examination was conducted by Dr. S.K. Mishra (PW-11). There were no external injuries on the dead body of the deceased. The Autopsy Surgeon could not ascertain the mode and cause of death. No definite opinion regarding poisoning was given. However, viscera of the deceased (containing pieces of intestines, liver, kidney, lungs, spleen, heart and uterus etc.) was preserved. It was sent for chemical examination to Forensic Science Laboratory (FSL), Raipur, from where, a report (Ex. P/15) was received. According to the FSL report, organophosphorus insecticide methyl parathion was found in the viscera of the deceased. 2.5 The case of the prosecution was based on oral dying declaration made before Sunti Bai (PW-1) and Sanjay Kumar (PW-2). 2.6 The learned Sessions Judge relied on the testimonies of these witnesses (PW-1 and PW-2) and held that it was proved beyond all reasonable doubts that the deceased had made oral dying declaration before them that the appellant had forcefully administered the said poison. 2.6 The learned Sessions Judge relied on the testimonies of these witnesses (PW-1 and PW-2) and held that it was proved beyond all reasonable doubts that the deceased had made oral dying declaration before them that the appellant had forcefully administered the said poison. The appellant, thus, was convicted and sentenced as above. Hence, this appeal. 3. Ms. Indira Tripathi, learned counsel appearing on behalf of the appellant, has argued that the oral dying declaration is suspicious, therefore, conviction based on the above solitary circumstance cannot be sustained. 4. On the other hand, Ms. Smita Ghai, learned 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. In Darshana Devi Vs. State of Punjab, 1995 Supp (4) SCC 126, it was held that an oral dying declaration can form basis of conviction in a given case, but such a dying declaration has to be trustworthy and free from every blemish and inspire confidence. 7. In Arun Bhanudas Pawar Vs. State of Maharashtra, (2008) 11 SCC 232 , it was held that "the oral dying declaration made by the Deceased ought to be treated with care and caution since the maker of the statement cannot be subjected to any cross-examination". 8. In Walkhom Yaima Singh Vs. State of Manipur, (2011) 13 SCC 125 , the Supreme Court held that "there can be no dispute that the dying declaration can be the sole basis for conviction, however such dying declaration has to be proved to be wholly reliable, voluntary and truthful and further that the maker thereof must be in a fit medical condition to make it. The oral dying declaration is a weak kind of evidence". 9. The oral dying declaration is said to be made before Sunti Bai (PW-1) and Sanjay Kumar (PW-2). 10. Sunti Bai (PW-1) is mother of the deceased. She deposed that on the fateful day when she returned to her house, her daughter, Laxmibai (deceased), was vomiting. When she asked her as to why she was vomiting, her daughter (deceased) stated that the appellant had administered poison on her after forcefully holding her mouth. This was also heard by Sanjay Kumar (PW-2). 11. She deposed that on the fateful day when she returned to her house, her daughter, Laxmibai (deceased), was vomiting. When she asked her as to why she was vomiting, her daughter (deceased) stated that the appellant had administered poison on her after forcefully holding her mouth. This was also heard by Sanjay Kumar (PW-2). 11. Sanjay Kumar (PW-2) has also corroborated the evidence of Sunti Bai (PW-1) to the extent that the deceased had made such oral dying declaration before them. 12. Mr. S.R. Diwan (PW-12) was the Executive Magistrate. He had performed the proceedings of Inquest (Ex.P/1). Sunti Bai (PW-1) was a Panch witness at the time of Inquest. It is mentioned in the Inquest (Ex.P/1) that the Panchas told that the deceased herself had consumed poison and has died. The Executive Magistrate, Mr. S.R. Diwan (PW-12), in para 3 of his evidence, has also admitted that while preparing the Inquest (Ex. P/1), when he asked the mother of the deceased, Sunti Bai (PW-1), she had stated that the deceased herself had consumed poison and has died. Though, she added that this the deceased did on account of saying by the appellant. 13. If the deceased would have made oral dying declaration before Sunti Bai (PW-1) and Sanjay Kumar (PW-2) that the poison was forcefully administered by the appellant, 'this fact must have been told by Sunti Bai (PW-1) before the Executive Magistrate, Mr. S.R. Diwan (PW-12) at the time of Inquest (Ex. P/1). 14. Sunti Bai (PW-1) has not stated like that in the Panchanama before the Executive Magistrate, Mr. S.R. Diwan (PW-12). There, she clearly mentioned that the deceased herself had consumed poison. The above statement made at the time of proceedings or Inquest (Ex.P/1) by Sunti Bai (PW-1) before the Executive Magistrate, makes the oral dying declaration suspicious. 15. We are of the opinion that in the above facts and circumstances of the case, the learned Sessions Judge erred in law in resting the conviction of the appellant on the above solitary circumstance of oral dying declaration which we find to be suspicious. 16. For the foregoing reasons, the appeal is allowed. The conviction and sentence awarded to the appellant under Section 302 IPC are set-aside. The appellant is acquitted of the charges framed against him. It is stated that the appellant is in jail. 16. For the foregoing reasons, the appeal is allowed. The conviction and sentence awarded to the appellant under Section 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 shall be released forthwith, if not required in any other case. Appeal Allowed.