Durg, Chhattisgarh v. State of Chhattisgarh Through Station House Of
Case Details
1 2025:CGHC:639-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1401 of 2024 Hemlal Sen S/o Late Pancham Sen Aged About 35 Years R/o Sikola Basti, Durg, Police Station Mohan Nagar, District- Durg, Chhattisgarh. ... Appellant(s) (In Jail) versus State of Chhattisgarh Through Station House OfÏcer, Police Out Post- Tumdibod, Police Station Lalbag, District- Rajnandgaon, Chhattisgarh. ...Respondent For Appellant For Respondent/State : : Mr. Sudhir Kumar Bajpai, Advocate. Mr. S.S. Baghel, Deputy Government Advocate. Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Ravindra Kumar Agrawal , Judge Per Ramesh Sinha , Chief Justice Judgment on Board 06 . 0 1.202 5 1. Heard Mr. Sudhir Kumar Bajpai, learned counsel for the appellant. Also heard Mr. S.S. Baghel, learned Deputy Government Advocate, appearing for the respondent/State. BRIJMOHAN MORLE Digitally signed by BRIJMOHAN MORLE Date: 2025.01.10 17:54:23 +0530 2. This criminal appeal is preferred under Section 415 of the Bhartiya Nagrik Suraksha Sanhita, 2023 (for short, ‘BNSS’) is directed against the 2 impugned judgment of conviction and order of sentence dated 22.05.2024 passed by the learned Session Judge, Rajnandgaon, District Rajnandgaon (C.G.) in Session Trial No. 76 of 2021 by which the appellant has been convicted for the offence punishable under Section 302 of the Indian Penal Code (IPC) and sentenced to undergo rigorous imprisonment for life and to pay fine amount of Rs. 1,000/-, in default of payment of fine amount additional rigorous imprisonment for 06 months. 3. Case of the prosecution, in brief, is that the deceased, Manisha Sen, was a resident of Kopedih village, Tumdibod Police Outpost, District Rajnandgaon. She was hosting a wedding ceremony at her home, where guests, including the accused, Hemlal Sen, his wife, and children, were present. On the night of May 21, 2021, everyone slept after dinner. The next morning, around 5:00 a.m. on May 22, 2021, guest Rambha Sen (PW-9) woke up and saw Hemlal Sen pouring kerosene on Manisha and
Facts
setting her on fire. Rambha tried to save Manisha, but got burned herself. The family took Manisha and Rambha to the District hospital in Rajnandgaon, where they were admitted. The hospital informed the Basantpur Police Station about the incident through Exs.P/16 & P/17. Inspector Ritesh Mishra (PW-16) went to the hospital to investigate and obtained the Doctors' opinions on Manisha's and Rambha's dying declarations through Ex.P/33 & P/34. He also requested the Tehsildar of Rajnandgaon to record Manisha's dying declaration through Ex.P/35. Based on this, Tehsildar Komal Singh Dhurve (PW-13) recorded Manisha's dying declaration as Ex.P/26. Inspector Ritesh Mishra registered a Dehati Nalsi against Hemlal Sen based on Rambha Sen's statement as Ex.P/36. 3 4. On May 22, 2021, Inspector Ritesh Mishra (PW-16) visited the crime scene and created a crime details form vide Ex.P/24. He also seized a kerosene container, a foot-board, and matchsticks from the crime scene vide Ex.P/8. Inspector Mishra then questioned the accused, Hemlal Sen, in the presence of witnesses and recorded his memorandum statement as Ex.P/6. During the interrogation, Hemlal Sen produced a matchbox, which was seized as Ex.P/7. The accused was then arrested, and his arrest was recorded in Ex.P/37. The Police also informed Hemlal Sen's relatives about his arrest, as documented in Ex.P/38. The Police filed the initial complaint vide Ex.P/36, at the Lalbagh Police Station, and it was registered as the First Information Report (FIR), Ex.P/25. Additionally, the Police requested the Tehsildar to prepare a spot map, as mentioned in Ex.P/40. According to the prosecution, on May 22, 2021, Manisha was referred to the Mekahara Hospital in Raipur for proper treatment. Unfortunately, she passed away the same day, and the information was sent to the Moudhapara Police Station in Raipur, as recorded in Ex.P/62. Based on this information, merg intimation, Ex.P/63, was made at the Moudhapara Police Station. 5. During the inquest, Assistant Sub-Inspector Mansharam Dhruv (PW-15) from Moudhapara Police Station in Raipur prepared the inquest report, Ex.P/21, in the presence of witnesses after serving them with notice, Ex.P/20. Based on the witnesses’ opinions, he prepared the application for postmortem examination, Ex.P/32, and conducted the postmortem examination of the deceased, Manisha. The body was then handed over to the relatives for cremation. Further investigation was carried out by Inspector Ritesh Mishra (PW-16), who obtained the 4 medical reports of Rambha Sen and the deceased, Manisha, along with the bedhead ticket, Exs.P/47 and P/18. During the postmortem examination, the Doctor prepared a vaginal slide of the deceased and collected blood samples from the accused, Hemlal Sen, for DNA testing as per the Doctor's instructions. These samples were sent to the FSL in Raipur through letters, Exs.P/48, 49, 50 & 55, and the FSL reports, Exs.P/57 to 59, and the DNA report, Ex.P/60, were obtained. 6. Dead body of the deceased was sent for postmortem to Dr. B.R. Ambedkar Hospital, Raipur, where Dr. Utkarsh Tripathi (PW-8) conducted postmortem over the body of the deceased vide Ex.P/32 along with Dr. Snigdha Jain Bansal, who found following injuries:- Dead body of an average built female. Rigidity is present. Postmortem lividity-not evident due to burns. No signs of decomposition present. Kerosene like smell from hairs. Injuries: 1. Superficial to deep burn with inflamed margins present over over body. The burned areas are as follows: a. Head, Neck, Face: 8% spared scalp intermittently. b. Chest: 9%. c. Abdomen: 8% spared suprapubic area. d. Back: 16% spared buttock area. e. Right upper limb: 9%. f. Right lower limb: 17% spared sole. 5 g. Left upper limb: 9%. h. Left lower limb: 16% spared foot. i. Genital area: 0%. Injuries mentioned above are ante-mortem. Dr. Utkarsh Tripathi (PW-8) opined that cause of death was due to burns injuries and its complications. 7. Statements of the witnesses were recorded under Section 161 of the Cr.P.C. After completion of investigation, charge-sheet was filed against the appellant before the jurisdictional criminal court and the case was committed to the Court of Sessions for trial from where the learned Session Judge, Rajnandgaon, District Rajnandgaon (C.G.) received the case on transfer for trial and for hearing and disposal in accordance with law. 8. The accused/appellant abjured the guilt and entered into witness. In order to bring home the offence, the prosecution examined as many as 17 witnesses and exhibited 63 documents. The defence has examined Exs.D/1 & D/2 in his defence, but not exhibited any document. 9. The trial Court upon appreciation of oral and documentary evidence available on record, by its judgment dated 22.05.2024 convicted the appellant for the offence punishable under Section 302 of the IPC and sentenced as mentioned in paragraph 02 of this judgment, against which, this criminal appeal has been preferred by the appellant herein. 10. Learned counsel for the appellant submits that the learned trial Court while passing the impugned judgment has failed to appreciate that 6 the prosecution has not proved its case beyond reasonable doubts. The motive and intention which is the essential ingredient to prove an offence under Section 302 of the IPC has not been proved by the prosecution and are missing. There is no direct evidence against the appellant and the entire prosecution case is based on the dying declaration given by deceased that too not supported by the certification of medical expert as to whether the deceased was in a fit state of mind to give such statement. Merely on the basis of dying declaration and in absence of any direct evidence, conviction of the appellant under Section 302 of the IPC cannot be sustained. As such, the criminal appeal deserves to be allowed and the impugned judgment deserves to be set aside. 11. On the other hand, learned State counsel supports the impugned judgment and submits that the prosecution has been able to bring home the offence beyond reasonable doubt and there is sufÏcient evidence available on record to hold him guilt and he has rightly been convicted by the learned Sessions Judge. He further submits that the dying declaration (Ex.P/26) is true and voluntary, it was given by deceased in a fit mental state, therefore, it is a reliable document and the appeal deserves to be dismissed. 12. We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the original records of the trial Court with utmost circumspection and carefully as well. 13. In order to appreciate the arguments advanced on behalf of the parties, we have to examine the evidence adduced on behalf of the prosecution. 7 14. The first question for consideration would be whether death of deceased was homicidal in nature. 15. In order to prove this fact, Dr. Utkarsh Tripathi has been examined as PW-8. He has clearly opined that cause of death was due to burn injuries & its complications. Learned trial Judge has recorded the finding that death was homicidal in nature, which has not been seriously disputed
Legal Reasoning
Evidence Act, the following propositions emerge:- (1) Section 32 is an exception to the rule of hearsay and makes admissible the statement of a person who dies, whether the death is a homicide or a suicide,provided the statement relates to the cause of death, or exhibits circumstances leading to the death. In this respect, as indicated above, the Indian Evidence Act, in view of the peculiar conditions of our society and the diverse nature and character of our people, has thought it necessary to widen the sphere of Section 32 to avoid injustice. (2) The test of proximity cannot be too literally construed and practically reduced to a cut-and- dried formula of universal application so as to be confined in a straitjacket. Distance of time would depend or vary with the circumstances of each case. For instance, where death is a logical culmination of a continuous drama long in process and is, as it were, a finale of the story, the statement regarding each step directly connected with the end of the drama would be admissible because the entire statement would have to be read as an organic whole and not torn from the context. Sometimes statements relevant to or 10 furnishing an immediate motive may also be admissible as being a part of the transaction of death. It is manifest that all these statements come to light only after the death of the deceased who speaks from death. For instance, where the death takes place within a very short time of the marriage or the distance of time is not spread over more than 3-4 months the statement may be admissible under Section 32. (3) The second part of clause (1) of Section 32 is yet another exception to the rule that in criminal law the evidence of a person who was not being subjected to or given an opportunity of being cross-examined by the accused, would be valueless because the place of cross-examination is taken by the solemnity and sanctity of oath for the simple reason that a person on the verge of death is not likely to make a false statement unless there is strong evidence to show that the statement was secured either by prompting or tutoring. (4) It may be important to note that Section 32does not speak of homicide alone but includes suicide also, hence all the circumstances which may be relevant to prove a case of homicide would be equally relevant to prove a case of suicide. 11 (5) Where the main evidence consists of statements and letters written by the deceased which are directly connected with or related to her death and which reveal a tell-tale story, the said statement would clearly fall within the four corners of Section 32 and, therefore,admissible. The distance of time alone in such cases would not make the statement irrelevant.” 19. Thereafter, in the matter of Devinder alias Kala Ram and others v. State of Haryana2, wherein the deceased, who sustained burn injuries while cooking meals on stove, had made a statement to the Doctor, their Lordships of the Hon’ble Supreme Court held that statement of the deceased recorded by the doctor is relevant under Section 32 of the Evidence Act and observed as under: - “14. In the facts of the present case, we find that PW 7, the Medical OfÏcer of the Civil Hospital, examined the case of the deceased on 6-8-1992 at 6.30 a.m. and he has clearly stated in his evidence that on examination she was conscious and that there were superficial to deep burns all over the body except some areas on feet,face and perineum and there was smell of kerosene on her body. He also stated in his evidence that the deceased was brought to the hospital by her husband Kala Ram (Appellant 1). He has proved the bed-head ticket pertaining to the deceased in the 2 (2012) 10 SCC 763 12 hospital (Ext. DD) as well as his endorsement at Point ‘A’ on Ext. DD, from which it is clear that he was told by the patient herself that she sustained burns while cooking meals on a stove. This statement of the deceased recorded by PW 7 is relevant under Section 32 of the Evidence Act, 1872 which provides that statements, written or verbal, of relevant facts made by a person who is dead, are themselves relevant facts when the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question.” 20. In the matter of Purshottam Chopra and another v. State (Government of NCT of Delhi)3, principles relating to recording of dying declaration and its admissibility and reliability were summed up in paragraph 21 as under: - “21. For what has been noticed hereinabove, some of the principles relating to recording of dying declaration and its admissibility and reliability could be usefully summed up as under:- 21.1. A dying declaration could be the sole basis of conviction even without corroboration, if it inspires confidence of the court. 21.2.The court should be satisfied that the declarant was in a fit 3 (2020) 11 SCC 489 13 state of mind at the time of making the statement; and that it was a voluntary statement, which was not the result of tutoring, prompting or imagination. 21.3. Where a dying declaration is suspicious or is suffering from any infirmity such as want of fit state of mind of the declarant or of like nature, it should not be acted upon without corroborative evidence. 21.4. When the eyewitnesses afÏrm that the deceased was not in a fit and conscious state to make the statement, the medical opinion cannot prevail. 21.5. The law does not provide as to who could record dying declaration nor there is any prescribed format or procedure for the same but the person recording dying declaration must be satisfied that the maker is in a fit state of mind and is capable of making the statement. 21.6. Although presence of a Magistrate is not absolutely necessary for recording of a dying declaration but to ensure authenticity and credibility, it is expected that a Magistrate be requested to record such dying declaration and/or attestation be obtained from other persons present at the time of recording the dying declaration. 21.7. As regards a burns case, the percentage 14 and degree of burns would not, by itself, be decisive of the credibility of dying declaration; and the decisive factor would be the quality of evidence about the fit and conscious state of the declarant to make the statement. 21.8. If after careful scrutiny, the court finds the statement placed as dying declaration to be voluntary and also finds it coherent and consistent, there is no legal impediment in recording conviction on its basis even without corroboration.” 21. The next question for consideration is, whether the statement of the deceased recorded by Tahsilar and Executive Magistrate Komal Singh Dhurve (PW-13) during the course of treatment is relevant under Section 32 of the Evidence Act or not? 22. Section 32(1) of the Indian Evidence Act, 1872 makes it clear that when a statement, written or verbal, is made by a person as to the cause of her death, or as to any of the circumstances of the transaction which resulted in her death, in cases in which the cause of that person's death comes into question, such statement is relevant. The Hon’ble Supreme Court in Sharad Birdhichand Sarda (supra) clearly held that Section 32 is an exception to the rule of hearsay and makes admissible, the statement of a person who dies, whether the death is homicide or a suicide, provided the statement relates to the cause of death or deals with circumstances leading to the death. The decision of the Hon’ble Supreme Court in Sharad Birdhichand Sarda (supra) has further been followed 15 by the Hon’ble Supreme Court in the matter of Kans Raj v. State of Punjab4 reviewing the earlier authorities. 23. Dying declaration of the deceased was recorded by Tahsildar & Executive Magistrate Komal Singh Dhurve (PW-13) vide Ex.P/26, according to which in the statement recorded in the form of question and answer, in response to questions No. 4 and 5, the injured Manisha Sen stated, that the incident occurred at 5:00 a.m. and she was asleep at that time, and her brother-in-law, Hemlal Sen, poured kerosene and set her on fire. Apart from family members, some guests were also present at home at the time of the incident”. Thus, in the dying declaration of Manisha Sen by Komal Singh Dhurve, the same thing has been clearly stated that Manisha Sen was burnt by the accused, Hemlal Sen by pouring kerosene and setting her ablaze with a matchstick. 24. Now considering the point of credibility of witness and admissibility of dying declaration. Komal Singh Dhurve (PW-13) who recorded dying declaration of deceased Manisha Sen, who has admitted in cross- examination that he is not aware that Manisha was literate. He further admitted that the thumb impression from point B to point B on Ex.P/26 was not of Manisha. He recorded the dying declaration of Manisha vide Ex.P/26 at that time she was in a semi-conscious state and was actually capable of giving a dying declaration. 25. Investigating ofÏcer Ritesh Mishra (PW-16) has stated that after registration of offence, he has seized a kerosene container, an empty container with a kerosene smell, a burnt bench with black marks, a burnt doormat, and matchsticks vide Ex.P-7, which could not be refuted. 4 AIR 2000 SC 2324 16 Therefore, no reason is found to disbelieve that seizure and availability of kerosene container in the house which supports the case of the prosecution. As such, the view taken by the learned trial Court that the appellant is the author of the crime, is a pure finding of fact based on evidence available on record. We hereby afÏrm that finding. 26. Thus, as a result of above discussion, it has been established from the prosecution evidence that on the date of incident, the accused, Hemlal Sen poured kerosene on Manisha and set her ablaze with a matchstick, due to which Manisha died on account of burn wounds and complications. According to Dr. Utkarsh Tripathi (PW-8), who examined the body, the existing burn wounds were sufÏcient to cause her death. 27.
Arguments
by the learned counsel for the appellant in this appeal and we also found that death of deceased was homicidal in nature and thereby afÏrm the finding recorded by the learned trial Court. 16. The appellant has solely been convicted on the basis of dying declaration (Ex.P/26) and there is no other piece of evidence, no legal evidence much less oral and circumstantial evidence to convict the appellant except the aforesaid dying declaration. Therefore, it would be appropriate to consider the dying declaration recorded by Tahsildar & Executive Magistrate Komal Singh Dhurve (PW-13). 17. At this stage, it would be appropriate to notice Section 32 (1) of the Evidence Act which states as under: - “32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant.—Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evi- dence,or whose attendance cannot be procured without an amount of delay or expense which, under the cir- cumstances of the case, appears to the Court unrea- 8 sonable, are themselves relevant facts in the following cases:— (1) when it relates to cause of death.—When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under ex- pectation of death, and whatever may be the na- ture of the proceeding in which the cause of his death comes into question. xxx xxx xxx” 18. Section 32(1) of the Evidence Act is famously referred to as the “dying declaration” section, although the said phrase itself does not find mention under the Evidence Act. Their Lordships of the Hon’ble Supreme Court have considered the scope and ambit of Section 32 of the Evidence Act, particularly, Section 32(1) on various occasions including in the matter of Sharad Birdhichand Sarda v. State of Maharashtra1 in which their Lordships have summarised the principles enumerated in Section 32(1) of the Evidence Act, including relating to “circumstances of the transaction”: “21.Thus, from a review of the authorities mentioned 1 (1984) 4 SCC 116 9 above and the clear language of Section 32(1) of the
Decision
In the result, this Court comes to the conclusion that the prosecution has succeeded in proving its case beyond all reasonable doubts against the appellant. The conviction and sentence as awarded by the trial court to the appellant is hereby upheld. The present criminal appeal lacks merit and is accordingly dismissed. 28. It is stated at the Bar that the appellant is in jail. He shall serve out the sentence as ordered by the trial Court. 29. Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the appellant is undergoing his jail sentence to serve the same on the appellant informing him that he is at liberty to assail the present judgment passed by this Court by preferring an appeal before the Hon’ble Supreme Court with the assistance of High Court Legal Services Committee or the Supreme Court Legal Services Committee. 17 30. Let a certified copy of this judgment along with the original record be transmitted to the trial court concerned forthwith for necessary information and compliance. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice Brijmohan