Ramnath @ Bhaira and Another vs State of Chhattisgarh

Sunil Kumar Sinha, J.—This appeal is directed against the judgment dated 27th of November, 2006, passed in Sessions Trial No. 94/06 by the Additional Sessions Judge, Janjgir, Sessions Division, Janjgir (CG). By the impugned judgment, the appellants have been convicted u/s 302, IPC and sentenced to undergo rigorous imprisonment for life and to pay fine of Rs. 200/- with default sentence of RI for 1 month. The facts, briefly stated, are as under:-

The appellants are in-laws of deceased-Santoshi Bai. The deceased was married to son of appellants namely, Hirachand. She was residing with her in-laws. She received burn injuries at about 7.00 p.m. on 31-7-2004. She was taken to the Clinic of Dr. B.P. Baghel (P.W. 10) in Village Sheorinarayan. From there, she was taken to SECL Hospital, Bankimongra for her further treatment. The deceased died on 7-8-2004 during the course of her treatment. On 6-8-2004 at about 9.10 a.m., her dying declaration (Exh. P-3) was recorded by Executive Magistrate, Raghuvir Ram Thakur (P.W. 5). In dying declaration, the deceased made statement that she was put to fire by the appellants after pouring kerosene on her body. Maharathi (P.W. 13) and Hatharin Bai (P.W. 19) also met and attended the deceased during the course of her treatment. The deceased had made oral dying declaration before them. The learned Sessions Judge relied on the evidence of dying declarations and convicted and sentenced the appellants as above.

Mr. Anand Kumar Gupta, learned Counsel appearing on behalf of the appellants, argued that the dying declarations are not reliable; the deceased was not in a fit mental condition to give dying declaration to the Executive Magistrate; and the alleged oral dying declaration made before Maharathi (P.W. 13) and Hatharin Bai (P.W. 19) is also suspicious.

Mr. Arvind Dubey, learned Panel Lawyer appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Sessions Court.

We have heard learned Counsel for the parties at length and have also perused the records of the sessions case.

Firstly, we shall examine the veracity of the written dying declaration (Exh. P-3).

Raghuvir Ram Thakur (P.W. 5) was posted as Additional Executive Magistrate, Katghora at the relevant time. He deposed that on 6-8-2004. on the instructions issued by the Executive Magistrate, Katghora, he went to SECL Hospital, Bankimongra and had recorded the dying declaration of the deceased. Firstly, he contracted treating Doctor, Dr. Ravindra Prasad Yadav (P.W. 1) to give his report regarding status of the deceased to give dying declaration. Dr. Yadav (P.W. 1) told him that the deceased was fully conscious to give her statement. We find that a certification to this effect was also made at the top of the dying declaration (Exh. P-3), which was proved by Dr. Ravindra Prasad Yadav (P.W. 1). The deceased had sustained burn injuries all over the body, except the face. She was talking clearly. She made dying declaration giving details as to how she was put on fire by the appellants. She deposed in clear words that on 31-7-2004, firstly, the appellants quarreled and, thereafter, the father-in-law (appellant No. 1) caught her hands and mother-in-law (appellant No. 2) poured kerosene on her body and, thereafter, put her on fire. About the husband, she stated that he was not present in the house at time of the incident. The Executive Magistrate has recorded the above dying declaration given by the deceased in Exh. P-3, which bears his signature at place ''C'' to ''C''. He further deposed that the dying declaration so recorded was read over to the deceased, who, thereafter, put her signature at place ''D'' to ''D'' and then Dr. Yadav (P.W. 1) also made endorsement and put his signature at place ''B'' to ''B'' certifying that the dying declaration was recorded in his presence.

Dr. Ravindra Prasad Yadav (P.W. 1) was posted as Senior Medical Officer in SECL Hospital, Bankimongra. He deposed that on 3rd of August, 2004, in the evening at about 5.30, Santoshi Bai (deceased) w/o Harichand, resident of Village Tanaud, P.S. Sheorinarayan, District Janjgir was brought to the hospital. She had sustained serious burn injuries. He immediately reported the matter to the concerned police, vide Exh. P-9. Thereafter, at the request of the police, he examined the deceased and found that she had sustained 65% burn injuries. On 6-8-2004, the Executive Magistrate, Katghora inquired for him about status of the deceased to record dying declaration. On his inquiry and request, he had certified that the deceased was fully conscious and she was in a position to give statement. He proved the certificate given by him in Exh. P-3.

Raghuvir Ram Thakur (P.W. 5) and the treating Doctor, Dr. Ravindra Prasad Yadav (P.W. 1) were cross-examined at length by the defence, but nothing material could be elicited in their cross-examination so as to hold that the above dying declaration recorded vide Exh. P-3 was not genuine. We find from the evidence of these two witnesses that they were fully satisfied about mental condition of the deceased that the deceased was fit to give dying declaration. Dr. Yadav (P.W. 1), therefore, gave certificate on the dying declaration and the Executive Magistrate (P.W. 5), after being satisfied, recorded the dying declaration as contained in Exh. P-3. We, further note that apart from the above, the certification given at the top of the dying declaration, Dr. Yadav (P.W. 1) further certified that the entire dying declaration was recorded in his presence and then he put his signature at the bottom of the dying declaration also. We have no reason to disbelieve the testimonies of Executive Magistrate, Raghuvir Ram Thakur (P.W. 5), and the treating Doctor, Dr. Ravindra Prasad Yadav (P.W. 1). The above facts make it clear that the deceased was fully conscious to give the dying declaration and the dying declaration was genuinely recorded by the Executive Magistrate (P.W. 5) in presence of treating Doctor (P.W. 1). Therefore, we do not find any infirmity in the evidence of written dying declaration relied by the learned Sessions Judge.

Now we shall consider the evidence of oral dying declaration.

Maharathi (P.W. 13) is brother of the deceased. He deposed that he had taken the deceased to Bankimongra, SECL Hospital. He had a talked with the deceased and the deceased had told in clear words that she was put to fire by her in-laws. In Para 6 of the cross-examination, he admitted that when he heard about the incident, he immediately rushed to Baghel Clinic. Her brother-in-law (husband of the deceased) was also present there. He saw that the deceased was in serious condition. He immediately took her to Bankimongra Hospital. Mr. Gupta has argued that in Para 6, he deposed that at that time the deceased was not able to speak, therefore, the oral dying declaration become unreliable. There may be that at a particular point of time, the deceased may not be able to speak, but in absence of any evidence to the effect that she was unconscious throughout thereafter, it cannot be held that she was not able to speak even on a later point of time. If we go through the evidence of Maharathi (P.W. 13), Para 3, it would be clear that the deceased made oral dying declaration before him in Bankimongra. There is no evidence to show that at that time she was not able to speak. Therefore, a casual admission in Para 6, which relates to a particular time will not wipe out the effect of the oral dying declaration made by the deceased at a later point of time.

Hatharin Bai (P.W. 19) is mother of the deceased. She also deposed about the oral ''dying declaration. According to her, the deceased was taken to Bankimongra for her treatment. She asked the deceased as to how she sustained burn injuries ? The deceased had told her that she was put to fire by her in-laws after pouring kerosene on her body. She also stated about the manner. In Para 11 of her cross-examination, she admitted that in Bankimongra Hospital, the deceased was recovering and she was also talking, but she died later on. The above witnesses were cross-examined on various aspect, but their evidence relating to oral dying declaration made by the deceased remained intact.

Apart from the above, we further find that Dr. Ravindra Prasad Yadav (P.W. 1) also deposed in Para 8 that while the deceased was brought to Bankimongra Hospital, she was talking, though she had received 65% burn injuries. He had asked the deceased as to how she received burn injuries, on which, the deceased had told him that she was burnt by her in-laws.

On due consideration of the above evidence, we find that there was sufficient material to hold that apart from the written dying declaration, the deceased had made oral dying declaration before Maharathi (P.W. 13), Hatharin Bai (P.W. 19) and Dr. Ravindra Prasad Yadav (P.W. 1).

In Atbir Vs. Govt. of N.C.T. of Delhi, the Supreme Court culled out following 10 principles relating to the dying declaration:-

(i) Dying declaration can be the sole basis of conviction, if it inspires the full confidence of the Court.

(ii) The Court should be satisfied that the deceased was in a fit state of mind at the time of making the statement and that it was not the result of tutoring, prompting or imagination.

(iii) Where the Court is satisfied that the declaration is true and voluntary, it can base its conviction without any further corroboration.

(iv) It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence.

(v) Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence.

(vi) A dying declaration, which suffers from infirmity such as the deceased was unconscious and could never make any statement cannot form the basis of conviction.

(vii) Merely, because a dying declaration does not contain all the details as to the occurrence, it is not to be rejected.

(viii) Even if it is a brief statement, it is not to be discarded.

(ix) When the eye-witness affirms that the deceased was not in a fit and conscious state to make the dying declaration, medical opinion cannot prevail.

(x) If after careful scrutiny, the Court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it the basis of conviction, even if there is no corroboration.

We have examined the dying declarations in light of the above principles. We do not find any infirmity in the written dying declaration (Exh. P-3) and oral dying declaration made by the deceased at different point of time. In both the dying declarations, the deceased clearly stated that she was put to fire by her in-laws (appellants herein) by pouring kerosene on her body.

On due consideration of the entire evidence available on record, we do not find any infirmity in the judgment and finding recorded by the learned Sessions Judge. The appeal, therefore, is liable to be dismissed and is hereby dismissed.