(Cr.A.No.97/2016) HIGH COURT OF CHHATTISGARH v. State of Chhattisgarh

house of Smt. Radhi Bai (PW-1) – mother of Tulawati, to visit the annual fare and on the date of offence, the appellant asked his wife to go back to their house at Jagdalpur, but she declined to go with him and expressed her view that she would like to stay along with her mother for 3-4 days, and on that count, the appellant became angry and poured kerosene oil over her body and set her ablaze. Thereafter, 108 ambulance was called and she was taken to hospital where she died during the course of treatment on 22-3-

2013. Meanwhile, dying declaration of deceased Tulawati was recorded by Executive Magistrate C.P. Baghel (PW-13) vide Ex.P- 11 and the doctor has certified vide Ex.P-10 that the deceased was in fit statement of mind to give dying declaration. Thereafter, on 22- 3-2013 at 8:00 p.m., during the course of treatment at hospital, Tulawati succumbed to the injuries sustained by her. Morgue was recorded and FIR was registered vide Ex.P-7. Inquest was prepared vide Ex.P-4 and dead body was subjected to postmortem vide Ex.P-8 which was conducted and proved by Dr. Pawan Tekade (PW-8) & one woman doctor Dr. (Smt.) Mahubiya who opined that cause of death was septicemia due to 75% mixed flame burns. Seized articles were sent for chemical examination to the FSL, (Cr.A.No.97/2016) Raipur, from where report Ex.P-14 was received in which presence of kerosene oil was found on the articles. Statements of the witnesses were recorded under Section 161 of the CrPC.

3. After due investigation, the appellant was charge-sheeted before the jurisdictional criminal court and charge was framed against him under Section 302 of the IPC and the case was committed to the Court of Sessions, Bastar at Jagdalpur where trial was conducted.

4. The prosecution in order to bring home the offence, examined as many as 13 witnesses PW-1 to PW-13 in support of its case and exhibited 14 documents Exs.P-1 to P-14. Defence has not examined any witness in support of its case and exhibited no document. Statement of the accused / appellant was recorded under Section 313 of the CrPC in which he abjured the guilt and pleaded innocence and false implication.

5. The trial Court after completion of trial and upon appreciation of oral and documentary evidence on record, by its impugned judgment, convicted and sentenced the appellant as mentioned in the opening paragraph of this judgment which is sought to be challenged in this criminal appeal preferred under Section 374(2) of the CrPC by the appellant.

6. Ms. Sofia Khan, learned counsel appearing for the appellant, would submit that the doctor, who certified the deceased to be in fit state of mind to give statement, has not been examined and in absence of that, there is nothing on record to hold that the deceased was in fit physical and mental condition to give statement and no corroboration is there in support of the said evidence. She would (Cr.A.No.97/2016) further submit that according to Smt. Radhi Bai (PW-1) – mother of the deceased and S.N. Shukla (PW-11) – investigating officer, the appellant was seriously injured in the incident and vide Ex.P-10, it has also been indicated that the appellant has also suffered 30% burns, which has not been explained, as such, the appellant is entitled for acquittal.

7. Mr. Sudeep Verma, learned State counsel, would support the impugned judgment and submit that the trial Court is absolutely justified in convicting the appellant for the aforesaid offence, as the prosecution has proved the offence against the appellant beyond reasonable doubt, as such, the appeal deserves to be dismissed.

8. We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost circumspection.

9. The question as to whether the appellant is the author of the crime and whether the death of the deceased was homicidal in nature will be considered in the later part of the judgment at the time of recording conclusion, in view of the evidence on record.

10.Case of the appellant is based on the dying declaration recorded vide Ex.P-11 proved by Executive Magistrate C.P. Baghel (PW-13) as well as the statement of Smt. Radhi Bai (PW-1) – mother of the deceased.

11. At this stage, it is appropriate to notice Section 32(1) of the Indian Evidence Act, 1872, which reads thus: “32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is (Cr.A.No.97/2016) 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 evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, 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 expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question. xxx”

12. The general ground of admissibility of the evidence mentioned in Section 32(1) of the Evidence Act is that in the matter in question, no better evidence is to be had. The provisions in Section 32(1) constitute further exceptions to the rule which exclude hearsay. As a general rule, oral evidence must be direct (Section 60). The eight clauses of Section 32 may be regarded as exceptions to it, which are mainly based on two conditions: a necessity for the evidence and a circumstantial guarantee of trustworthiness. Hearsay is excluded because it is considered not sufficiently trustworthy. It is rejected because it lacks the sanction of the tests applied to admissible evidence, namely, the oath and cross-examination. But where there are special circumstances which gives a guarantee of trustworthiness to the testimony, it is admitted even though it comes (Cr.A.No.97/2016) from a second-hand source. The Supreme Court emphasized on the principle enumerated in the famous legal maxim of the Law of Evidence, i.e., nemo moriturus praesumitur mentire which means a man will not meet his Maker with a lie in his mouth. Our Indian Law also recognizes this fact that “a dying man seldom lies” or in other words “truth sits upon the lips of a dying man”. The relevance or this very fact, is an exception to the rule of hearsay evidence.

13. 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 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”, which are as under: - “21. Thus, from a review of the authorities mentioned above and the clear language of Section 32(1) of the 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 1 (1984) 4 SCC 116 (Cr.A.No.97/2016) 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 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 32 does 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. (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.”

14. In the matter of Purshottam Chopra and another v. State (Cr.A.No.97/2016) (Government of NCT of Delhi)2, 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 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 affirm 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 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 2 (2020) 11 SCC 489 (Cr.A.No.97/2016) 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.”

15. Where several dying declarations are made the test is whether the version of the deceased is proved to be false in respect of the integral part of the case. A dying declaration should satisfy all the necessary tests and one such important test is that if there are more than one dying declarations they should be consistent particularly in material particulars [See: Kamla v. State of Punjab3.]

16. In the matter of Mohanlal Gangaram Gehani v. State of Maharashtra4, their Lordships of the Supreme Court held that where there are more than one statement in the nature of dying declaration made by the accused, one first in time must be preferred.

17. In a recent judgment rendered by their Lordships of the Supreme Court in the matter of Makhan Singh v. State of Haryana5 while considering the issue of multiple dying declarations, their Lordships have held as under: It could thus be seen that the Court is required to “9. examine as to whether the dying declaration is true and reliable; as to whether it has been recorded by a person at a time when the deceased was fit physically and mentally to make the declaration; as to whether it has been made under any tutoring/ duress/prompting. The dying declaration can be the sole basis for recording conviction and if it is found reliable and trustworthy, no