Mantram Rohidas vs State Of Chhattisgarh

Sanjay K. Agrawal, J

(1) In this criminal appeal filed under Section 374(2) of Cr.P.C., the two appellants herein, namely, Mantram Rohidas (A-1) and Smt. Bandhano Rohidas (A-2) are calling in question the legality, validity and correctness of the impugned judgment of conviction and order of sentence dated 29.07.2017, passed by Additional Judge, Katghora to the Court of Additional Sessions Judge, Katghora, District Korba (Chhattisgarh), in Sessions Trial No.93 of 2016, whereby both the appellants herein have been convicted for offence under Section 302 read with Section 34 of IPC and sentenced to undergo imprisonment for life with fine of Rs.500/- each and, in default of payment of fine amount, additional rigorous imprisonment for 15 days each.

(2) The case of the prosecution, in a nut-shell, is that on 28.06.2016, in the evening at about 07:00 PM, in the courtyard of the house of Geeta Rohidas, situated at Village Puta within the ambit of Police Station Pali, the two accused-appellants herein firstly shared common intention to kill Geeta Rohidas (for short the “deceased”) and, thereafter, in furtherance thereof poured kerosene oil over her body and set her ablaze, due to which she suffered deep burn injuries and died later on during the course of treatment at Community Health Center, Pali on 03.07.2016 and, thereby, the appellants are said to have committed offence under Section 302/34 of IPC.

(3) After the aforesaid incident, the deceased was escorted to the Community Health Center, Pali, on the same day i.e. on 28.06.2016 at about 10:20 PM, where at about 11.15 PM, Dr. P. Agrawal, Medical Officer, CHC Pali (PW-07) has recorded her first dying declaration vide Ex.P/23, in which, the deceased has stated that her mother-in-law (saas) and husband’s brother (jeth) are the author of the crime in question. Thereafter, on 29.06.2016 at about 12:10 PM, the Tehsildar-cum-Executive Magistrate, namely, Sandeep Thakur (PW-05) has recorded second dying declaration of the deceased vide Ex.P/17, in which, the deceased has only implicated the appellant No.01 herein and, thereafter, on 03.07.2016, deceased succumbed to the injuries and died.

(4) Meanwhile, during the course of treatment at CHC, Pali, on 28.06.2016 at about 11:00 PM, the police recorded dehati Nalsi vide Ex.P/24. Dr. P. Agrawal (PW-07) medically examined the deceased and gave MLC report (Ex.P/21), wherein it has been opined that deceased suffered burn injuries to the extent of 65%. However, after the death of the deceased on 03.07.2016, the police registered marg intimation (Ex.P/33) and FIR (Ex.P/25) against the appellants/accused persons. During the course of investigation, summons under Section 175 of CrPC were sent vide Ex.P/01 & Ex.P/18. Inquest proceedings were conducted vide Ex.P/02 & Ex.P/19. Nazari Naksha was prepared vide Ex.P/04. The dead-body of deceased was sent for postmortem examination and in the postmortem report (Ex.P/03), conducted by Dr. Ravindra Bagde (PW-06), it was opined that the cause of death of deceased is cardio-respiratory failure, as a result of antemortem burn injuries and its complications. The appellants/accused persons were arrested vide Ex.P/05 to Ex.P/12 respectively. From the place of incident i.e. house of the deceased, one plastic bottle containing kerosene, one box of matchsticks, simple soil, kerosene mixed soil and pieces of burned sari of the deceased were seized vide Ex.P/10. The aforesaid seized articles were sent for chemical examination, of which, FSL report (Ex.P/30) has been obtained by the prosecution. Thereafter, statements of witnesses were recorded and, after due investigation, the police filed charge-sheet against both the accused persons 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 appellants/accused abjured their guilt and entered into defence by stating that they are innocent and have been falsely implicated.

(5) The prosecution in order to prove its case examined as many as 13 witnesses and exhibited 34 documents apart from Final Report, whereas the appellants/accused persons have neither examined any witness nor exhibited any documents in support of their defence.

(6) The learned trial Court after appreciating the oral and documentary evidence available on record, proceeded to convict both the accused-appellants herein for offence under Sections 302/34 of IPC and sentenced them as mentioned herein-above, against which this appeal has been preferred by the appellants-accused questioning the impugned judgment of conviction and order of sentence.

(7) Mr. C.R. Sahu and Mr. B.L. Demra, learned counsel appearing for both the appellants submits that the learned trial Court is absolutely unjustified in convicting the two appellants, namely, Mantram Rohidas (A-1) and Smt. Bandhano Rohidas (A-2) for offence under Section 302/34 of IPC, as the prosecution has failed to prove the offence beyond reasonable doubt. He further submits that the two dying declarations recorded vide Ex.P/23 & Ex.P/17 respectively cannot be relied upon to premise the conviction of the appellants, as the same are not voluntary and trustworthy. In the first dying declaration recorded by Dr. P. Agrawal (PW-07) vide Ex.P/23, the deceased has not exactly named the two appellants herein, namely, Mantram Rohidas (A-1) and Smt. Bandhano Rohidas (A-2) to be the author of the crime, whereas in the second dying declaration recorded by the Executive Magistrate, namely, Sandeep Thakur (PW-05) vide Ex.P/17, the certification of the doctor with regard to fitness of the deceased to be in fit physical and mental condition to give statement is missing. As such, both the dying declarations are liable to be discarded, as in view of aforesaid infirmities, the same does not inspire confidence and cannot be relied upon to convict the appellants herein. 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 deserve to be acquitted of the said charge.

(8) Per-contra, Mr. Afroz Khan, 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 coupled with other evidence available on record, the conviction and sentence passed by the learned trial Court against the appellants is well merited and, therefore, both the appeals deserve 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) In the instant case, learned trial Court has convicted both the appellants on the basis of two dying declarations recorded vide Ex.P/23 and Ex.P/17 and there is no other piece of evidence, no legal evidence much less oral and circumstantial evidence to convict the appellants except the aforesaid dying declarations. Therefore, it would be appropriate to notice the principles governing the dying declaration and examination of the doctor while recording the dying declaration.

(11) At this stage, it is relevant 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”

(12) The general ground of admissibility of the evidence mentioned in Section 32(1) 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 of 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 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”:

“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.”

(14) Thereafter, in the matter of Devinder alias Kala Ram and others v. State of Haryana (2012) 10 SCC 763, wherein the deceased, who sustained burn injuries while cooking meals on stove, had made a statement to the doctor, their Lordships of the 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 Officer 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 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.”

(15) Recently, 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.”

(16) The question for consideration is, whether the statement of the deceased recorded by Dr. P. Agrawal (PW-07) during the course of her treatment is relevant under Section 32 of the Evidence Act or not?

(17) 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 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 statement is relevant. The 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 Supreme Court in Sharad Birdhichand Sarda (supra) has further been followed by the Supreme Court in the matter of Kans Raj v. State of Punjab AIR 2000 SC 2324 reviewing the earlier authorities.

(18) Recently, in the matter of Irfan @ Naka v. State of Uttar Pradesh 2023 SCC Online SC 1060 the Supreme Court has held that the dying declaration is a substantive piece of evidence to be relied on provided it is proved that the same was voluntary and truthful and the victim was in a fit state of mind and observed in Para-63 as under:

“63. It is the duty of the prosecution to establish the charge against the accused beyond the reasonable doubt. The benefit of doubt must always go in favour of the accused. It is true that dying declaration is a substantive piece of evidence to be relied on provided it is proved that the same was voluntary and truthful and the victim was in a fit state of mind. It is just not enough for the court to say that the dying declaration is reliable as the accused is named in the dying declaration as the assailant.”

(19) Looking to the evidence available on record in light of the aforesaid principles of law laid down by their Lordships of the Supreme Court in the above-mentioned judgments, in the instant case, as the conviction of both the appellants is premised on two dying declarations recorded vide Ex.P/23 & Ex.P/17, therefore, we will consider the same one by one.

First Dying Declaration (Ex.P/23):

(20) The first dying declaration of the deceased was recorded on 28.06.2016, at about 11:15 PM, at Community Health Center, Pali by the Medical Officer, namely, P. Agrawal (PW-07) vide Ex.P/ 23. In the said dying declaration (Ex.P/23), certification with regard to fitness of the deceased to give statement is also available. However, a careful perusal of aforesaid dying declaration (Ex.P/23) would show that deceased has only stated that her husband’s brother (jeth) and mother-in-law (saas) have poured kerosene oil on her body and set her ablaze, but the full name and address of both the appellants herein, namely, Mantram Rohidas (A-1) and Smt. Bandhano Rohidas (A-2) are completely missing in order to ascertain that they are the same person who have been named by the deceased in the dying declaration (Ex.P/23), which was necessary to make the said dying declaration voluntary and trustworthy.

(21) The Supreme Court in the matter of Gopal Singh another vs. The State of Madhya Pradesh and another AIR 1972 SC 1557 has clearly held with reference to Section 32 of the Indian Evidence Act, 1872 that a dying declaration which does not contain complete names and addresses of the persons charged with the offence, even though may help to establish their identity, is not of such a nature on which conviction can be based and it cannot be accepted without corroboration and observed in Para-07 & 08 as under:

“7. We have already referred to the fact that the learned Sessions Judge was not prepared to accept the evidence of Umraodas, P.W. 1 and Chhotulal, P.W. 7, that deceased Modsingh had named the appellants as assailants when they met him in the morning at 8.00 a.m. on the roadside. Detailed reasons have been given by the learned Sessions Judge why he considered their evidence unsatisfactory. The High Court, however, in one sentence expressed its opinion that the evidence of these two witnesses, amongst others, corroborated the dying declaration in respect of the identity of the appellants without giving any reasons why it differed on the point from the learned Sessions Judge. It is obvious that the High Court was so well satisfied by the written dying declaration as establishing the identity of the appellants that it ignored to consider the evidence of Umraodas, PW 1 and Chhotulal, PW 7 independently to see how far they were reliable. In an appeal against acquittal we think the High Court ought to have expressed itself more fully why it considered that the learned Sessions Judges’ conclusion was unreasonable. In our opinion that conclusion is unexceptionable.

But even if we assume that the High Court was right in concluding that the dying declaration established the identity of the appellants, it was certainly not of that character as would warrant its acceptance without corroboration. It is settled law that a court is entitled to convict on the sole basis of a dying declaration if it is such that in the circumstances of the case it can be regarded as truthful. On the other hand if on account of an infirmity, it cannot be held to be entirely reliable, corroboration would be required. See: Kushal Rao v. State of Bombay AIR 1958 SC 22. In this case, it must be first remembered that though the names of the appellants' fathers were known to Modsingh and others who accompanied him to the Police Station, their fathers' names and present residence have not been mentioned. It is rather unusual for Police Officers not to enquire and record in the first information the full name and address of the persons complained against……..”

(22) As such, in view of aforesaid principle of law laid down by their Lordships of the Supreme Court in the matter of Gopal Singh (supra) coupled with the fact that the names and identity of two appellants herein have not been spelled out/mentioned by the deceased in the dying declaration (Ex.P/23), therefore, it would be unsafe to rely upon the aforesaid dying declaration (Ex.P/23) to convict both the appellants herein, as the same is not voluntary and trustworthy. We hereby hold accordingly.

Second Dying Declaration (Ex.P/17):

(23) The second dying declaration of the deceased was recorded by the Tehsildar-cum-Executive Magistrate, namely, Sandeep Thakur (PW-05) on 29.06.2016 at about 12:10 PM vide Ex.P/17. Though in this dying declaration (Ex.P/17), the deceased has only implicated the appellant No.01 herein to be the author of the crime, but there is no certification by any doctor with regard to fitness of the deceased to give statement/dying declaration (Ex.P/ 17). Even otherwise, the Tehsildar-cum-Executive Magistrate, namely, Sandeep Thakur (PW-05) has also not recorded his satisfaction nor uttered a word in his statement before the Court that at the time of recording of dying declaration (Ex.P/17) the deceased was in fit state of mind to give statement. Further, though deceased remained alive till 03.07.2016, i.e. 05 days after the incident, but no additional dying declaration in presence of any doctor has been recorded. As such, there is no evidence brought on record to hold that the deceased was in fit state of mind at the time of recording of dying declaration (Ex.P/17), in absence of which, and in light of the decision of the Supreme Court in the matter of Irfan @ Naka (supra), dying declaration (Ex.P/17) cannot be relied upon to convict the appellants and same pales into insignificance. We hereby hold accordingly.

(24) Consequently, we are of the considered opinion that the two appellants herein, namely, Mantram Rohidas (A-1) and Smt. Bandhano Rohidas (A-2) are entitled to get the benefit of doubt, as the learned trial Court has committed grave legal error in convicting both the appellants for offence under Section 302/34 of IPC on the basis of two dying declarations (Ex.P/23 & Ex.P/17) that too in absence of any further corroboration. Accordingly, the conviction and sentence of two appellants herein, namely, Mantram Rohidas (A-1) and Smt. Bandhano Rohidas (A-2) for offence punishable under Section 302/34 of IPC, as imposed upon them by the learned trial Court, are hereby set aside. They are acquitted of the said charge on the basis of benefit of doubt. Since both the appellants are in jail from 2016, therefore, we direct that they be released from jail forthwith, if not required in any other matter/case.

(25) This criminal appeal is allowed.

(26) 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 forthwith where the appellants are languishing for necessary information and action, if any.