Ashok Giri Goswami vs State Of Chhattisgarh

Sanjay K. Agrawal, J

This criminal appeal under Section 374(2) of the CrPC preferred by the appellants – accused persons herein is directed against the impugned judgment of conviction and order of sentence dated 21.10.2014 passed by the 2nd Additional Sessions Judge Sakti, District Janjgir-Champa, Chhattisgarh, in Sessions Trial No. 103/2013 by which appellant namely Ashokgiri Goswami (A-1), has been convicted for offence under Section 302 and sentenced to undergo imprisonment for life with fine of ₹1,000/-, in default of payment of fine additional rigorous imprisonment for 15 days and for offence under Section 498-A of the IPC sentenced to undergo for rigorous imprisonment for 3 years with fine of ₹500/-, in default of payment of fine additional rigorous imprisonment for 10 days and appellants namely Taragiri Goswami (A-2) & Kalyanibai (A-3) have been convicted for offence under Section 302 read with Section 34 of the IPC and sentenced to undergo imprisonment for life with fine of ₹1,000/-each, in default of payment of fine additional rigorous imprisonment for 15 days and for offence under Section 498-A read with Section 34 of the IPC and sentenced to undergo imprisonment for life with fine of ₹ 500/- each; in default of payment of fine additional rigorous imprisonment for 10 days.

Case of the prosecution, in short, is that on 30.11.2012 at village Mukta, appellants namely Ashokgiri Goswami (A-1), husband of Parmeshwari Bai (now deceased), Taragiri Goswami (A-2), brother-in-law of Parmeshwari Bai, & Kalyanibai (A-3), mother-in-law of Parmeshwari Bai, caused the death of Parmeshwari Bai by setting her ablaze after pouring kerosene oil on her body by which she suffered grievous burn injuries to the extent of 80%-85% and during treatment she died on 14.12.2012. Further case of the prosecution is that marriage of Parmeshwari Bai (deceased) & A-1 was solemnized 5 to 6 years prior to the date of offence and they were blessed with three children and immediately after the marriage of Parmeshwari Bai (deceased) & A-1, appellants (A-1, A-2 & A-3) were started treating her (deceased) with cruelty and demanded dowry, on account of that on 30.11.20212, A-1 poured kerosene oil on her body and set her ablaze and A-2 & A-3 thrown terrycot saree on her body by which she suffered grievous burn injuries to the extent of 80% to 85%. She was immediately taken to the hospital by the appellants herein at Metro Hospital, Raigarh where during treatment on 14.12.2012 she died. In Metro Hospital, Raigarh, she (deceased) had given dying declaration (Ex.P/11) to Executive Magistrate Amit Shrivastava (PW-29) on 30.11.2012 and it was certified one of the doctor of the said hospital that she was in fit physical and mental state of mind to give dying declaration vide Ex.P/37. In dying declaration (Ex.P/15) she has implicated appellants herein. Merg intimation was registered vide Ex.P/2. FIR was registered vide Ex.P/8. Inquest proceedings (Ex.P/4) were conducted and the dead body of the deceased was sent for postmortem. As per postmortem report (Ex.P/46), proved by Dr. Chaturbhuj Mishra (PW-22), cause of death was septicemic shock resulting from extensive burn (80%-85%).

After due investigation, appellants herein were charge-sheeted for the aforesaid offences and the case was committed to the Court of Sessions for trial in accordance with law. The appellants / accused persons abjured their and entered into defence.

In order to bring home the offences, prosecution has examined as many as 29 witnesses and exhibited 51 documents and defence in support of its case has examined three witnesses (DW-1 to DW-3), but not exhibited any document.

The learned trial Court after appreciating the oral and documentary evidence available on record, convicted the appellants / accused persons for the offences as mentioned in the opening paragraph of the judgment, against which this appeal has been preferred by the appellants (A-1, A-2 & A-3) herein questioning the impugned judgment of conviction and order of sentence.

Mr. Praveen Dhurandhar, learned counsel for the appellants, submits that appellants have falsely been implicated in crime in question and they have been convicted by recording a finding which is perverse to the record. He also submits that the conviction of the appellants is based on the dying declaration, but the prosecution has failed to establish that deceased was in fit physical and mental state of mind to record the dying declaration, though certificate has been given by the doctor, but doctor has not been examined and also Executive Magistrate Amit Shrivastava (PW-29) did not state that deceased was fit in physical and mental state of mind to record the dying declaration while recording the dying declaration and Rajkumar Chouhan (PW-7) & Vikas (PW-10) witnesses to the dying declaration have also not stated that deceased was in fit physical and mental state to record the dying declaration and even, as per dying declaration, the role of A-2 & A-3 is only that they have thrown the terrycot saree over her (deceased) body by which she suffered more extensive burn injuries. Therefore, the conviction of the appellants (A-1, A-2 & A-3) for offences under Section 302 & 498-A of the IPC are liable to be set aside and they are entitled for acquittal on the basis of benefit of doubt.

On the other hand, Mr. Sameer Oraon, learned State counsel, supports the impugned judgment and submits that prosecution has been able to prove the offence beyond reasonable doubt and there is sufficient evidence adduced by the prosecution showing involvement of the appellants in crime in question. He further submits that there is no reason to disbelieve the dying declaration made by Parmeshwari Bai (deceased) and even the oral dying declaration has given by Parmeshwari Bai (deceased) to Jagannath (PW-2), brother of the deceased, Kumari Nimeshwari (PW-8), sister of the deceased, & Smt. Bai Sahab (PW-9), mother of the deceased, therefore, the trial Court has rightly convicted the appellants (A-1, A-2 & A-3) herein for the aforesaid offences and the instant appeal deserves to be dismissed.

We have heard learned counsel for the parties, considered their rival submissions made herein-above and gone through the records with utmost circumspection.

So far as the nature of death of Parmeshwai Bai (deceased) is concerned, no definite opinion has been expressed by Dr. Chaturbhuj Mishra (PW-22) in postmortem report (Ex.P/46) and learned trial Court has also not answered this question specifically, therefore, it would be appropriate to consider the question of nature of death of deceased as well as the question of author of crime in question conjointly considering the entire evidence available on record as the case mainly based on dying declaration (Ex.P/11) recorded by Amit Shrivastava (PW-29), Executive Magistrate, and oral dying declaration allegedly given by the deceased to Jagannath (PW-2), brother of the deceased, Kumari Nimeshwari (PW-8), sister of the deceased, & Smt. Bai Sahab (PW-9), mother of the deceased. We shall consider both of the questions together.

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.—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 xxx xxx”

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 man”. The relevance or this very fact, is an exception to the rule of hearsay evidence.

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 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 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.”

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.”

In addition to this, 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.

The Constitution Bench of the Supreme Court in Laxman (supra) has held that what is essentially required is that the person who records the 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.

Returning to the facts of the present case in the light of the principles of law laid down by their Lordships of the Supreme Court in the aforesaid judgments, it is quite vivid that dying declaration has been recorded by the Executive Magistrate Amit Shrivastava (PW-29) on 30.11.2012 at 9:45 pm vide Ex.P/11 in which Parmeshwari Bai (deceased) has stated that on the date of offence when she was cooking food, she scolded her children on account of which, in anger, her husband A-1 herein poured kerosene oil on her body and set her ablaze and thereafter, A-2 & A-3 thrown the terrycot saree on her body by which she suffered grievous burn injuries, but, surprisingly the doctor who has given the certificate vide Ex.P/37, that deceased was in fit physical and mental state of mind to give statement has not been examined for the reasons best known to the prosecution, though Executive Magistrate Amit Shrivastava (PW-29) in para 3 of his statement before the Court has stated that on a query being made to the deceased he found her (deceased) able to give dying however, such statement has not been recorded while recording the dying declaration (Ex.P/11). Similarly, two witnesses to the dying declaration (Ex.P/11) namely Rajkumar Chouhan (PW-7) & Vikas (PW-10) have not clearly stated that Parmeshwari Bai (deceased) was in fit physical and mental state of mind to give dying declaration, they have only stated that Executive Magistrate Amit Shrivastava (PW-29) had made an inquiry from Parmeshwari Bai (deceased) which was replied by her (deceased) while recording the dying declaration. As such, there is no evidence available on record that Parmeshwari Bai (deceased) was in fit physical and mental state of mind to record dying declaration as the medical officer / doctor of the Metro Hospital, Raigarh, who has certified Parmeshwari Bai (deceased) vide Ex.P/37 that she was in fit physical and mental state of mind to give dying declaration has not been examined. Satisfaction of the Executive Magistrate Amit Shrivastava (PW-29) though recorded in para 3 of his statement before the Court, but it is not recorded in the dying declaration itself (Ex.P/11). In that view of the matter, it is apparent that the prosecution has failed to establish that Parmeshwari Bai (deceased) was in fit physical and mental state of mind while recording the dying declaration (Ex.P/11) on 30.11.2012 at 9:45 pm and furthermore, in the dying declaration (Ex.P/11) name of A-2 & A-3 has been mentioned and they are said to have only thrown the terrycot saree over her, however, no such saree or part of saree has been seized from the spot. In shape of corroboration, prosecution has brought on record the evidence of oral dying declaration allegedly given by Parmeshwari Bai (deceased) to Jagannath (PW-2), brother of the deceased, Kumari Nimeshwari (PW-8), sister of the deceased, & Smt. Bai Sahab (PW-9), mother of the deceased.

In the light of the principles of law laid down by their Lordships of the Supreme Court in Darshana Devi v. State of Punjab 1995 Supp (4) SCC 126, Arun Bhanudas Pawar v. State of Maharashtra (2008) 11 SCC 232 and Walkhom Yaima Singh v. State of Manipur (2011) 13 SCC 125, it is quite vivid that oral dying declaration is a weak piece of evidence and it can be only 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.

In the instant case, it has already been held that the prosecution has failed to establish that Parmeshwari Bai (deceased) was in fit physical and mental state of mind while recording dying declaration (Ex.P/11). However, statement of Jagannath (PW-2), brother of the deceased, would show that Parmeshwari Bai (deceased) had given the oral dying declaration to him, but the date and time of giving dying declaration has not been specifically recorded, though, the incident took place on 30.11.2012 and she (deceased) died on 14.12.2012, but date and time of giving dying declaration has not been given.

Furthermore, in the statement of Kumari Nimeshwari (PW-8), sister of the deceased, date and time of making dying declaration has not been recorded though she (deceased) died after 13 days of the incident. Similar statement has been made by Smt. Bai Sahab (PW-9), mother of the deceased. Apart from that they appear to be interested witnesses and since the written dying declaration (Ex.P/11) recorded by the Executive Magistrate Amit Shrivastava (PW-29) has not been found true and voluntary as Parmeshwari Bai (deceased) was not found in fit physical and mental state of mind to record the dying declaration, it would be unsafe to convict the appellants (A-1, A-2 & A-3) herein for the aforesaid offences relying upon the dying declaration (Ex.P/11) recorded by Executive Magistrate Amit Shrivwastava (PW-29) and the oral dying declaration allegedly given by Parmeshwari Bai (deceased) to Jagannath (PW-2), brother of the deceased, Kumari Nimeshwari (PW-8), sister of the deceased, & Smt. Bai Sahab (PW-9), mother of the deceased and they are entitled for acquittal on the basis of benefit of doubt.

Concludingly, we are of the considered opinion that prosecution has neither proved dying declaration (Ex.P/11) recorded by the Executive Magistrate Amit Shrivastava (PW-29) nor oral dying declaration allegedly given by the deceased to Jagannath (PW-2), brother of the deceased, Kumari Nimeshwari (PW-8), sister of the deceased, & Smt. Bai Sahab (PW-9), mother of the deceased. In that view of the matter, we are of the considered opinion that the trial Court has erred in convicting the appellant Ashokgiri Goswami (A-1) for offences under Section 302 & 498-A of the IPC and appellants Taragiri Goswami (A-2) and Kalyanibai (A-3) for the offences under Section 302 read with Section 34 of the IPC and Section 498-A read with Section 34 of the IPC. We hereby set aside the conviction recorded and sentence awarded by the trial Court to the appellants and they are acquitted on the basis of principles of benefit of doubt. A-1 & A-2 are reported to be in jail since 31.12.2012 and A-3 is reported to be in jail since 30.01.2013, we direct that they be released from the jail forthwith, if not required in any other matter.

This criminal appeal is allowed.

Let a certified copy of this judgment along with the original records be transmitted to the concerned trial Court and to the Superintendent of Jail where they are lodged and suffering jail sentence, forthwith for necessary information and action, if any.