Sanjay K. Agrawal, J
1. This criminal appeal preferred by the appellant herein under Section 374(2) of the CrPC is directed against the impugned judgment dated 29-6-2016
passed by the 5th Additional Sessions Judge, Raipur, in Sessions Trial No.175/2014, by which the appellant has been convicted under Section 302 of
the IPC and sentenced to undergo imprisonment for life & pay fine of ₹ 1,000/-, in default, additional rigorous imprisonment for one month.
2. Case of the prosecution, in brief, is that on 25-5-2014 at about 1.30 p.m., at Village Charauda, Near the house of Smt. Ritu Verma (deceased),
Verma Gali, Police Station Dharsinwa, District Raipur, the appellant poured kerosene oil over the body of his wife Ritu Verma and alighted matchstick
by which she suffered grievous injuries and she was admitted the hospital where she succumbed to the burn injuries sustained by her and died on 30-
5-2014. During the course of treatment, her dying declaration was recorded by Jageshwar Kaushal (PW-12), Tahsildar, vide Ex.P-12 in which she has
implicated the present appellant as the assailant. Before dying declaration, on 26-5-2014, she was certified to be in fit state of mind for giving dying
declaration. After death of Ritu Verma, her dead body was subjected to postmortem vide Ex.P-11 which was conducted by Dr. S.K. Bagh (PW-11)
who opined that death was due to cardio-respiratory failure as a result of burn injuries and their complication. Seized articles were sent for chemical
examination to the FSL, Raipur, from where report Ex.P-21 was received in which presence of kerosene oil was found on Article A â€" plastic
jerrycan. 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, Raipur, from where the learned 5th Additional Sessions Judge, Raipur received
the case on transfer for trial.
4. The prosecution in order to bring home the offence, examined as many as 15 witnesses PW-1 to PW-15 in support of its case and exhibited 24
documents Exs.P-1 to P-24. Defence has examined one witness Pradeep Verma (DW-1) and exhibited one document Ex.D-1 i.e. the statement of
Khileshwar Verma recorded under Section 161 of the CrPC, in support of its case. 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. Mr. B.L. Dembra, learned counsel appearing for the appellant, would submit that the dying declaration is inadmissible in evidence in view of the
fact that the doctor who has certified the deceased to be in fit state of mind to give statement, has not been examined. Jageshwar Kaushal (PW-12),
Tahsildar / Executive Magistrate has not stated before the Court that the deceased was in fit state of mind to give dying declaration. In that view of
the matter, the appellant is entitled to be acquitted on the basis of benefit of doubt and also on the ground that he has also made attempt to extinguish
the fire.
7. Mr. Afroz Khan, 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 two questions that arise for consideration in the present appeal are, whether the death of deceased Ritu Verma was homicidal in nature and
whether the appellant is the author of the crime in question?
10. Since both these questions are interlinked with each other, we shall deal with both of them together considering the nature of evidence brought on
record.
11. Conviction of the appellant is mainly based on the dying declaration Ex.P-12 given by deceased Ritu Verma to Jageshwar Kaushal (PW-12),
Tahsildar / Executive Magistrate.
12. 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 relevant.â€"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:â€
(1) when it relates to cause of death.â€"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 xxx xxxâ€
13. 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 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 manâ€. The relevance or this very fact, is an exception to the rule of hearsay evidence.
14. 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 Maharashtra (1984) 4 SCC 116 in
which their Lordships have summarised the principles enumerated in Section 32(1) of the Evidence Act, including relating to “circumstances of the
transactionâ€, 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 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.â€
15. In the matter of Purshottam Chopra and another v. State (Government of NCT of Delhi) (2020) 11 SCC 489, 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 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.â€
16. A Constitution Bench of the Supreme Court in the matter of Laxman v. State of Maharashtra (2002) 6 SCC 710 has clearly held that 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. Their Lordships held in paragraph 5 of the report as under: -
“5. The Court also in the aforesaid case relied upon the decision of this Court in Harjit Kaur v. State of Punjab (1999) 6 SCC 545 wherein the
Magistrate in his evidence had stated that he had ascertained from the doctor whether she was in a fit condition to make a statement and obtained an
endorsement to that effect and merely because an endorsement was made not on the declaration but on the application would not render the dying
declaration suspicious in any manner. For the reasons already indicated earlier, we have no hesitation in coming to the conclusion that the observations
of this Court in Paparambaka Rosamma v. State of A.P. (1999) 7 SCC 695 (at SCC p. 701, para 8) to the effect that
in the absence of a medical certification that the injured was in a fit state of mind at the time of making the declaration, it would be very much risky to
accept the subjective satisfaction of a Magistrate who opined that the injured was in a fit state of mind at the time of making a declaration
has been too broadly stated and is not the correct enunciation of law. It is indeed a hypertechnical view that the certification of the doctor was to the
effect that the patient is conscious and there was no certification that the patient was in a fit state of mind specially when the Magistrate categorically
stated in his evidence indicating the questions he had put to the patient and from the answers elicited was satisfied that the patient was in a fit state of
mind whereafter he recorded the dying declaration. Therefore, the judgment of this court in Paparambaka Rosamma v. State of A.P.8 must be held to
be not correctly decided and we affirm the law laid down by this Court in Koli Chunilal Savji v. State of Gujarat (1999) 9 SCC 562.
17. The Constitution Bench of the Supreme Court in Laxman (supra) has held that what is essentially required is that the person who records a dying
declaration must be satisfied that the deceased was in a fit state of mind. Their Lordships further held that 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.
18. Bearing in mind the aforesaid principles of law laid down by their Lordships of the Supreme Court in the aforesaid judgments (supra), it is quite
vivid that the prosecution is required to prove that the deceased has given dying declaration which is true and voluntary and further, while giving dying
declaration, she was in fit state of mind to give the dying declaration. In the present case, dying declaration has been recorded by Jageshwar Kaushal
(PW-12) on 26-5-2014 at 6.30 p.m. vide Ex.P-12 in which one doctor has certified that the deceased was in fit state of mind to give statement,
however, surprisingly, the doctor who has certified that the deceased is “fit for statement†has not been examined by the prosecution for reasons
best known to it. Even Jageshwar Kaushal (PW-12), who has been examined before the Court and who has proved the dying declaration, has only
proved the dying declaration, but did not make statement about his satisfaction that the deceased was in fit state of mind to give statement and even in
his examination-in-chief and in cross-examination, he has only stated that doctor was present, but he did not say that the deceased was in fit state of
mind to give statement and that the doctor has certified that she was in fit state of mind to give dying declaration. As such, there is absolutely no
evidence on record to hold that the victim / deceased was in fit state of mind physically and mentally to give dying declaration. Furthermore, one more
mitigating circumstance that has been brought on record in the dying declaration Ex.P-12 itself is, the victim herself has stated that after the appellant
having poured kerosene oil on her body and having alighted matchstick, when she started burning, also made endeavour to extinguish the fire, though
thereafter absconded from the spot as stated by Khileshwar Verma (PW-5).
19. In that view of the matter, we are of the considered opinion that the prosecution has failed to establish that the deceased was in fit state of mind
physically and mentally to give statement / dying declaration in absence of examination of the doctor who has certified the deceased to be in fit state
mind to give statement and satisfaction has not been recorded by the Executive Magistrate in the statement before the Court or in the dying
declaration itself that the deceased was in fit state of mind to give dying declaration, as she has sustained 60% burn injuries.
20. In that view of the matter, we are unable to hold that the prosecution has been able to bring home the offence against the appellant beyond
reasonable doubt and as such, the appellant is entitled to be acquitted on the ground of benefit of doubt.
21. In view of the aforesaid discussion, we are unable to sustain the conviction of the appellant under Section 302 of the IPC, as the conviction is not
well merited. As such, conviction and sentences imposed upon the appellant under Section 302 of the IPC are liable to be set-aside and are hereby
set-aside. The appellant is acquitted of the said charge. Since he is in jail from 1-6-2014, we direct that he be set at liberty forthwith if not required to
be detained under any other process of law.
22. The appeal is allowed accordingly.
23. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned for necessary information and
action, if any. A certified copy of the judgment may also be sent to the concerned Jail Superintendent forthwith wherein the appellant is suffering the
jail sentence.
