State of Chhattisgarh v. Laxminarayan, by the Additional Judge to the Court of Additional Sessions Judge
Case Details
Page No.1 of 14 IN CRA-1382-2019 SAIFAN KHAN Digitally signed by SAIFAN KHAN Date: 2025.02.25 11:11:29 +0530 2025:CGHC:8887-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Appeal No. 1382 of 2019 [Arising out of judgment dated 25.06.2019, passed in Sessions Case No.04 of 2018 (State of Chhattisgarh v. Laxminarayan, by the Additional Judge to the Court of Additional Sessions Judge, Katghora, District Korba (CG)] Laxminarayan S/o Gurbal Gond Aged About 34 Years R/o Village Saila, Police Station Pali, District Korba Chhattisgarh, District : Korba, Chhattisgarh versus ... Appellant(s) State Of Chhattisgarh Through Police Of Police Station Pali, District Korba Chhattisgarh, District : Korba, Chhattisgarh ... Respondent(s) [Cause-title taken from Case Information System (CIS)] ---------------------------------------------------------------------------------- For Appellants For Respondent : Mr. Ashish Beck, Advocate : Mr. Ashish Shukla, Addl. Adv. General; Mr. Sharad Mishra and Mr. Afroz Khan, Panel Lawyers ---------------------------------------------------------------------------------- Division Bench Hon'ble Shri Justice Sanjay K. Agrawal and Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment on Board (20.02.2025) Sanjay K. Agrawal, J (1) Invoking criminal appellate jurisdiction of this Court enshrined under Section 374(2) of the Code of Criminal Procedure (for short the “CrPC”), the sole accused-appellant is calling in question the legality, validity and correctness of the impugned Page No.2 of 14 IN CRA-1382-2019 judgment of conviction and order of sentence dated 25.06.2019, passed in Sessions Case No.04 of 2018 (State of Chhattisgarh v. Laxminarayan, by the Additional Judge to the Court of Additional Sessions Judge, Katghora, District Korba (CG), whereby he has been convicted for offence under Section 302 of IPC and sentenced to undergo imprisonment for life with fine of Rs.500/- and, in default of payment of fine amount, sentenced to undergo additional imprisonment for 01 month. (2) The case of the prosecution, as projected the prosecution and found proved/established by the learned trial Court, is that on 01.07.2017, at about 08:30 PM in the night, at Village Saila, which comes within the ambit of Police Station Pali, District Korba (CG), the accused-appellant herein quarreled with his wife, namely, Prem Kumari (hereinafter referred to as the “deceased”), due to which, the deceased out of anger and in heat of passion, poured kerosene oil over her body and set herself ablaze by lighting matchstick, as a result of which, the deceased suffered burn injuries and died later on during the course of her treatment in the hospital on 05.07.2017 and, thereby, said to have committed offence under Section 306 of IPC. (3) It is further case of the prosecution that immediately after the
Legal Reasoning
incident, when the deceased was first escorted to Primary Health Centre, Pali, her dying declaration (Ex.P/09) was recorded on Page No.3 of 14 IN CRA-1382-2019 01.07.2017 by Dr. Jyoti Sahu (PW-06) in front of two witnesses, wherein she stated that on account of dispute and quarrel with the appellant (her husband), the deceased out of anger poured kerosene oil over her body and set herself ablaze. On the basis of which, FIR (Ex.P/11) was registered against the appellant for offence under Section 306 of IPC. Thereafter, when the deceased was referred to Chhattisgarh Institute of Medical Science (CIMS), Bilaspur for better treatment, on 02.07.2017 at about 12:55, her second dying declaration (Ex.P/20) was recorded by Executive Magistrate, namely, D.S. Uikey (PW-11), wherein the deceased again stated that on account of dispute with her husband (appellant), she under anger poured kerosene oil over her body and set herself ablaze by lighting matchstick. As such, it is clear that in two dying declarations (Ex.P/09 & Ex.P/20) the deceased did not implicate the appellant herein to be the author of the crime. (4) However, on 05.07.2017, the deceased succumbed to the injuries and died during the course of her treatment at CIMS, Bilaspur and, pursuant to which, merg intimation (Ex.P/17) was recorded and wheels of investigation started running, in which, site map was prepared vide Ex.P/03. Summons under Section 175 of CrPC were sent vide Ex.P/01 and inquest proceedings were also conducted vide Ex.P/02. The dead-body of the deceased was sent for postmortem examination and, in the postmortem report (Ex.P/06), conducted by Dr. R.K. Markam (PW-05), it has been Page No.4 of 14 IN CRA-1382-2019 opined that the cause of death of the deceased is burn injuries and its complications. The accused-appellant was arrested vide Ex.P/05. Certain articles i.e. plastic bottle containing smell of kerosene, matchstick box and burnt pieces of deceased’s clothes etc. were seized from the spot. The said seized articles were sent for chemical analysis to FSL, Raipur and FSL report is Ex.P/24. Thereafter, statements of witnesses were recorded and, after due investigation, the police filed charge-sheet against the appellant in the competent Court of criminal jurisdiction and, ultimately, the case was committed to the Court of Sessions for hearing and trial in accordance with law, in which the appellant/accused abjured his guilt and entered into defence by stating that he is innocent and has been falsely implicated. (5) The prosecution in order to prove its case examined as many as 12 witnesses and exhibited 24 documents apart from Article A1 to A17, whereas the appellant-accused in support of his defence, though not examined any witness, but exhibited 01 document. (6) The learned trial Court after appreciating the oral and documentary evidence available on record, partly believing the two dying declarations of the deceased (Ex.P/09 & Ex.P/20) to the extent that on account of quarrel and dispute with the appellant, the deceased under anger poured kerosene oil over her body and set herself ablaze and further considering the statements of Page No.5 of 14 IN CRA-1382-2019
Legal Reasoning
Premlata (PW-03) and Smt. Uma Sidar (PW-04), to whom the deceased is said to have given oral dying declaration, proceeded to convict the appellant herein for offence under Section 302 of IPC and sentenced him as mentioned in the opening paragraph of this judgment on the ground that it is the appellant who caused burn injuries over the body of the deceased and, due to which she died, against which this appeal has been preferred by the appellant- accused questioning the impugned judgment of conviction and order of sentence. (7) Mr. Ashish Beck, learned counsel appearing for the appellant submits that the learned trial Court is absolutely unjustified in convicting the appellant for offence under Section 302 of IPC, as the prosecution has failed to prove the same beyond reasonable doubt. He further submits that though the learned trial Court has relied upon the two dying declarations of the deceased (Ex.P/09 & Ex.P/20), but erroneously disbelieved the fact that the deceased has committed suicide by pouring kerosene oil over her body and set herself ablaze by lighting matchstick. Further, the learned trial Court has also wrongly relied upon the statements of Premlata (PW-03) and Smt. Uma Sidar (PW-04) to the extent of deceased giving oral dying declaration to them to base the conviction of the appellant for the reasons that: (i) they are close relative of the deceased being younger sister and sister-in-law respectively; (ii) their statements under Section 161 of CrPC have been recorded Page No.6 of 14 IN CRA-1382-2019 after a delay of 47 days from the date of incident and (iii) father of the deceased, namely, Sevaklal (PW-02), who was also present at the time of deceased giving oral dying declaration to Premlata (PW- 03) and Smt. Uma Sidar (PW-04), has not supported the case of the prosecution. Hence, the impugned judgment of conviction and order of sentence passed by the learned trial Court is liable to be set aside and the appellants deserves to be acquitted from the said charge on the basis of benefit of doubt. (8) Per-contra, learned State counsel supported the impugned judgment of conviction and order of sentence and submits that the prosecution has proved the offence beyond reasonable doubt by leading evidence of clinching nature. He further submits that in view of two dying declarations (Ex.P/09 & Ex.P/20) coupled with other evidence available on record i.e. statements of Premlata (PW- 03) and Smt. Uma Sidar (PW-04), the conviction and sentence passed by the learned trial Court against the appellant is well merited and, therefore, present appeal deserves to be dismissed. (9) We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. (10) Now the question for consideration before us would be whether the appellant herein is the author of the crime in question and, whether under the facts and circumstances of the present Page No.7 of 14 IN CRA-1382-2019 case, the learned trial Court has rightly convicted the appellant for offence under Section 302 of IPC ? (11) In the case at hand, it is clear that the learned trial Court has accepted two dying declarations (Ex.P/09 & Ex.P/20) of the deceased, recorded by Dr. Jyoti Sahu (PW-06) and Executive Magistrate- DS Uikey (PW-11) respectively, wherein the deceased has concurrently stated that on the date and time of the offence, as the appellant (her husband) wanted to go and live with his second wife- Tiketi Bai, dispute and quarrel took place between them and, in which, the deceased under anger and in heat of passion, poured kerosene oil over her body and set herself ablaze by lighting matchstick and, due to which, the deceased suffered burn injuries. However, dying declaration (Ex.P/09) was recorded on 01.07.2017 by Dr. Jyoti Sahu (PW-06) at Primary Health Centre, Pali where the deceased was first admitted for treatment, whereas the second dying declaration (Ex.P/20) was recorded on 02.07.2017 by Executive Magistrate- DS Uikey (PW-11) at CIMS, Bilaspur. In both the said dying declarations, the deceased has not clearly implicated the appellant to be the author of the crime in question, indeed, she only stated that on account of quarrel/dispute with the appellant, she her poured kerosene oil over her body and set herself ablaze, due to which, she suffered burn injuries. Furthermore, in the present case, it is an evidence on record that after the incident, when information with regard to the hospitalization of the deceased Page No.8 of 14 IN CRA-1382-2019 was heard, Sevaklal (PW-02) [father of the deceased], Premlata (PW- 03) [sister of the deceased] and Smt. Uma Sidar (PW-04) [sister-in- law of the deceased] all visited the hospital to meet the deceased. But, Sevaklal (PW-02) did not state that his daughter (deceased) has given any oral dying declaration, whereas Premlata (PW-03) and Smt. Uma Sidar (PW-04) both have stated that in the hospital when the appellant (husband of the deceased) and Sevaklal (PW- 02) both have gone for purchasing medicine, at that time, the deceased has given oral dying declaration to them by stating that it is the appellant who has poured kerosene oil over her body and set her ablaze by lighting matchstick. On the basis of which, the learned trial Court proceeded to convict the appellant for the offence in question by disbelieving two dying declarations (Ex.P/09 & Ex.P/20) to the extent that on account of dispute with the appellant, the deceased herself poured kerosene oil over her body and set herself ablaze. (12) In this regard, one important fact which needs to be noticed herein is that dying declarations (Ex.P/09 & Ex.P/20) were recorded on 01.07.2017 & 02.07.2017 respectively, whereas the statements under Section 161 of CrPC of Premlata (PW-03) and Smt. Uma Sidar (PW-04) were recorded on 17.08.2017 i.e. after a delay of about 47 days and there is no plausible explanation offered by the prosecution that as to why there is such delay in recording such important statements of the witnesses. Therefore, it Page No.9 of 14 IN CRA-1382-2019 casts a serious doubt on the authenticity and credibility of the statements of Premlata (PW-03) and Smt. Uma Sidar (PW-04) to the extent of deceased giving oral dying declaration to them, more particularly, when father of the deceased, namely, Sevaklal (PW- 02), who has also accompanied them to the hospital for seeing the deceased, has stated that the deceased has not given any oral dying declaration. As such, the factum of deceased giving oral dying declaration to Premlata (PW-03) and Smt. Uma Sidar (PW-04) is not free from doubt and cannot be relied upon that too when they are close relatives of the deceased being sister and sister-in- law respectively. (13) The law with regard to oral dying declaration is well settled. It has been held by their Lordships of the Supreme Court that the oral dying declaration is a weak kind of evidence and it can only be made the basis of conviction, if it inspires full confidence of the Court and if the Court is satisfied that the maker of the said oral dying declaration was in a fit state of mind at the time of making it and that it was not an outcome of tutoring, prompting or imagination and where the dying declaration is suspicious and there is no other corroborative piece of evidence on record, it would be unsafe for the Court to record conviction on the solitary evidence of such oral dying declaration (See: Darshana Devi v. Page No.10 of 14 IN CRA-1382-2019 State of Punjab 1 ; Arun Bhanudas Pawar v. State of Maharashtra 2 and Walkom Yaima Singh v. State of Manipur 3 ). (14) Furthermore, the Supreme Court in the matter of Godhu and another vs. State of Rajasthan 4 has held that the rejection of a part of the dying declaration would put the Court on the guard and induce it to apply a rule of caution and observed in Para-16 & 19 as under: “16. We are also unable to subscribe to the view that if a part of the dying declaration has not been proved to be correct, it must necessarily result in the rejection of the whole of the dying declaration. The rejection of a part of the dying declaration would put the court on the guard and induce it to apply a rule of caution. There may be cases wherein the part of the dying declaration which is, not found to be correct is so indissolubly linked with the other part of the dying declaration that it is not possible to sever the, two parts. In such an event the court would well be justified in rejecting the whole of the dying declaration. There may, however, be other cases wherein the two parts of a dying declaration may be severable and the correctness of one part does not depend upon the correctness of the other part. In the last mentioned cases the court would not normally act upon - part of the dying declaration, the other part of which has of been found to be true, unless the part relied upon is corroborated in material particulars by the other evidence on record. If such other evidence shows that part of the dying declaration relied upon is correct and trustworthy, the court can act upon that part of the dying declaration despite the fact that another part of the dying declaration has not been proved to be correct. 1 1995 Supp. (4) SCC 126 2 (2008) 11 SCC 232 3 (2011) 13 SCC 125 4 (1975) 3 SCC 241 Page No.11 of 14 IN CRA-1382-2019 19. The prosecution also led evidence to show recovery of unlicensed gun and two cartridges from the field of Godhu in pursuance of his statement. This evidence does not connect Godhu accused with the crime of murder of Gheru deceased because there is nothing to show that the said gun was used for the murder of the deceased. We thus find that the material on record is bereft of any evidence which may lend corroboration to the dying. declaration of Gheru deceased regarding the complicity of Godhu. It is, in our opinion, not safe to base the conviction of Godhu accused upon the uncorroborated dying declaration of Gheru deceased in this case.” (15) In the matter of State of Himachal Pradesh v. Wazir Chand and others 5 their Lordships held that it would not be proper to take another view of the matter, if two interpretations of a dying declaration is possible and the question of participation of accused is totally based on the dying declaration of the deceased, thus, the interpretation which is favourable to the accused should be accepted. Moreover, the Supreme Court in the matter of Uttam v. State of Maharashtra 6 has held that if two written dying declarations of the deceased are liable to be discarded on account of glaring lacunae in recording the same, the accused could not have been convicted on the basis of oral testimony/dying declaration of the witnesses and observed in Para-38 as under: “38. We are of the opinion that once the High Court had disagreed with the Session Court and discarded the two written dying declarations of the deceased due to several glaring lacunae in the procedure adopted by 5 (1978) 1 SCC 130 6 (2022) 8 SCC 576 Page No.12 of 14 IN CRA-1382-2019 the SEM (PW-9) and the I.O. (PW-14) in recording the said statement, then the appellant could not have been indicted on the oral testimony of PW-2, father of the deceased and PW-12, family friend, both of who were interested witnesses and whose evidence runs contrary to the versions of the deceased recorded by PW-9 and PW-14. It must be remembered that all the four dying declarations, two in writing and the other two oral, were based on the statements given by the deceased at different times on the very same day, i.e., 27th March, 1995, when she had suffered 93% burn injuries and there are serious doubt about her being mentally and physically fit to give her statement. The IO (PW-14) had recorded the first dying declaration at 3.20 p.m. this was followed by the SEM (PW-9) having recorded the second dying declaration between 4.30p.m. and 5.00 p.m. It was on the very same day that PW-2 and PW-12 had also met the deceased at the hospital and claimed that she had informed them as to how she had received the burn injuries and named the appellant as the culprit.” (16) Concludingly, we hereby hold that the learned trial Court is absolutely unjustified in relying upon the oral dying declaration said to have been given by the deceased to Premlata (PW-03) and Smt. Uma Sidar (PW-04) for the following reasons that: (i) they are close relatives of the deceased; (ii) their statements under Section 161 of CrPC were recorded after a huge delay of about 47 days, which is not at all explained by the prosecution at any point of time; (iii) Sevaklal (PW-02), who is father of the deceased and has also accompanied Premlata (PW-03) and Smt. Uma Sidar (PW-04) to the hospital for seeing the deceased, has not supported the case of the prosecution with regard to the fact of deceased giving oral Page No.13 of 14 IN CRA-1382-2019 dying declaration to them; (iv) in absence of corroboration, the oral dying declaration is a weak piece of evidence in light of decision referred to hereinabove by us. Furthermore, the deceased in her two dying declarations (Ex.P/09 & Ex.P/20) did not implicate the appellant herein to be the author of the crime and concurrently stated that as the appellant (her husband) wanted to go and live with his second wife- Tiketi Bai, dispute and quarrel took place between them and, in which, the deceased under anger, poured kerosene oil over her body and set herself ablaze by lighting matchstick and, due to which, the deceased suffered burn injuries. Thus, disbelieving the said fact, the learned trial Court on the basis of uncorroborated oral dying declaration allegedly said to have been given to Premlata (PW-03) and Smt. Uma Sidar (PW-04), proceeded to convict the appellant herein for the offence in question, which is totally unsustainable in the eyes of law and liable to be set aside. We hereby hold accordingly. (17) Accordingly the conviction of the appellant for offence punishable under Section 302 of IPC as well as the sentence of life imprisonment alongwith the fine and default stipulation, as imposed upon him by the learned trial Court, is hereby set aside. The appellant is acquitted of the said charge on the basis of benefit
Decision
of doubt. The appellant is reported to be in jail, therefore, we direct that he be released from jail forthwith, if not required in any other matter/case. Page No.14 of 14 IN CRA-1382-2019 (18) Consequently, this criminal appeal is allowed to the extent indicated hereinabove. (19) Let a certified copy of this order alongwith original record be transmitted to the trial Court concerned as well as to the Superintendent of Jail where the appellants are languishing for necessary information and action, if any. Sd/- (Sanjay K. Agrawal) Judge Judge Sd/- (Sanjay Kumar Jaiswal) s@if