Siddhanath Goswami vs State Of Madhya Pradesh

Subodh Abhyankar, J.

This criminal appeal under Section 374(2) of the Code of Criminal Procedure has been preferred by the appellant being aggrieved by the judgment and

order dated 26/08/2008 passed by the learned Sessions Judge, Rewa in ST No.250/2007, whereby the appellant has been convicted under Sections

302 and 450 of IPC and sentenced to life imprisonment with fine of Rs.100/- and five years’ RI respectively and in default of payment of fine,

additional SI for one month on each count.

The prosecution case in short is that on 26.10.2007 when the deceased R, whose identity is being not disclosed, was at her home alone at around 2

O’clock in the noon, at that time, the appellant entered in her house and tried to commit rape and when she refused to accede to his demand, the

appellant poured kerosene over her from a plastic can lying in the room and set her ablaze and ran away from the spot after closing the door from

outside by putting a hook. On the deceased R’s cry, her sister-in-law (Jethani) Arti Goswami (PW-5) came and opened the door and put off the

fire. Subsequently R’s husband also came and took her to the hospital where on 29.10.2007 i.e. on fourth day, at around 5:45 PM her dying

declaration was recorded in the presence of the Naib Tahsildar Vivek Gupta (PW-7) in which she narrated the entire incident and stated that appellant

Siddhanath Goswami, who happens to be her nephew, used to have ill-intention towards her and because of the incitement of the appellant’s

father Chandrabali and his father’s brother Omnath, the appellant has committed this offence. Deceased passed away on 01.11.2007. It is further

stated in the dying declaration that these people wanted to drive away her from the village so that they can grab their property. After the investigation

was over, the charge sheet was filed against the appellant and was subsequently tried by the Sessions Judge, Rewa, who after recording the evidence

of the witnesses convicted the present appellant under Sections 302 and 450 of IPC and sentenced as aforesaid vide its judgement dated 26/08/2008.

Being aggrieved by the said judgment, finding and sentence the instant appeal has been preferred by the appellant.

Shri Vijay Kumar Lakhera, learned counsel for the appellant has submitted that the appellant has been falsely implicated in the matter, and the

learned trial Court has committed a grave error in convicting the present appellant as the conviction of the appellant is based on mis-reading and non-

reading of the evidence on record. It is further submitted that the learned Judge of the trial Court has given undue importance to the dying declaration,

which was recorded on fourth day of the incident i.e. on 29.10.2007, as the incident took place on 26.10.2007. It is further submitted that the

prosecution story itself is highly doubtful for the reason that admittedly the incident took place on 26. 10.2017 before 2 O’clock, whereas the

deceased R was taken to the hospital by her husband in the evening. The hospital memo Ex.P/10 on the same day and vide Ex.P/11 on 7.10.2007

issued to SGM police chowki for recording dying declaration also reveals the exact time of the arrival of the deceased in the hospital was 8:30 PM

which is surprising as despite having suffered serious burn injuries to the extent of 80% and she was kept at the house for more than six hours, which

has also been admitted by the prosecution witnesses including Arti Goswami (PW-5) as also the husband of the deceased Satyanath (PW-4), who has

clearly stated that he came to the house at around 1:30 and met his wife but instead of taking her to the hospital, he went to his brother’s house,

which is six kilometers from his place and then after consulting him, he took his wife to the hospital on a cycle.

It is further submitted by the learned counsel for the appellant that the FIR in the present case was recorded after undue delay, as the incident took

place on 26.10.2007, whereas the intimation of the same was given to the police station on 30. 10.2007, and the reason for lodging the same after such

delay is that the deceased was admitted directly in the hospital and thereafter her MLC was prepared and statement was recorded. Learned counsel

for the appellant has further submitted that the learned Judge of the trial Court has not taken into account the evidence of the defence witnesses

whose presence was also not denied by the prosecution witnesses and in fact Arti Goswami (PW-5) has also admitted his presence on the spot.

Jamna (DW-1) has also deposed that after reaching on the spot, he had asked the deceased as to why she has burnt herself, then she informed him

that his husband wanted to bring another woman, hence she tried to commit suicide. This witness DW-1 has further stated that he did not see the

appellant Siddhanath Goswami on the spot, and further has stated that the deceased had committed suicide only and when he reached the spot, he had

to push the door open as the door was closed from inside. Similarly Rajbahadur (DW-2) and Mahendra Singh (DW-3) have also been examined, who

have stated that since the husband of the deceased was not taking her to the hospital, they forced him to take his wife to the hospital. Rajbahadur

(DW-2) has also stated that appellant Siddhanath Goswami was not taking the deceased to the hospital for the reason that he wanted her to falsely

implicate appellant Siddhanath Goswami, and told her that if she refused to do so, he would not take her to the hospital.

On the other hand, learned counsel for the State has submitted that the prosecution has been able to prove its case beyond reasonable doubt

specially when there is dying declaration on record which has not only been recorded by the Naib Tahsildar in the course of his duty, but even Dr.

Raman Gupta (PW-11) has deposed that the deceased was fit to give her statement. In such circumstances, the findings recorded by the learned

Judge of the trial Court cannot be said to be erroneous. It is further submitted that there was no reason for the deceased to falsely implicate the

present appellant if some other person has committed the offence.

Heard the learned counsel for the parties and perused the record.

The present appellant had been tried under Sections 450, 376 read with Sections 511 and 302 of IPC but has been acquitted so far as the charge

relating to attempt to rape is concerned, but has been convicted for the other offences as mentioned above.

So far as the death of the deceased is concerned, the same took place on 01.11.2007 on account of burn injuries suffered by her in the incident,

which took place on 26.10.2007. The death was indeed homicidal in nature, which is also apparent from the deposition of Dr.S.K.Pathak (PW-10),

who was posted as CMO at SGMH Rewa, who found that the deceased had 83 percent burn injuries. According to him, the death was on account of

shock due to burn injuries and resulting in complications. Thus it is a matter of record that the death of the deceased was homicidal in nature.

Now the question is whether the present appellant has committed the murder of the deceased by pouring kerosene over her and after setting her

ablaze, fled from the spot after shutting the door from outside. In this behalf the first evidence is of the deceased herself, although her statement in the

Court could not be recorded on account of her death on 1.11.2007, but her dying declaration and her statement under Section 161 of Cr.P.C. are on

record, which can be considered, as the same is admissible in evidence leading to the cause of her death under Section 32 of the Evidence Act, 1872.

In the dying declaration (Ex.P-7), which has been recorded by the Naib Tahsildar Vivek Gupta (PW-7), the deceased has stated that on

26.10.2007 when she was alone at her home, at that time the appellant Siddhanath Goswami, who happens to be her nephew came and tried to rape

her and when she refused to accede to his demand, he poured kerosene oil over her and set her ablaze and while fleeing from the deceased’s

house, he also shut the door from behind by putting a hook from outside but after hearing her cries, her sister-in-law PW-5 Arti Goswami wife of

Terasnath Goswami came and extinguished the fire and at that time other persons from the village had also come and thereafter she was taken from a

truck, to the Rewa Hospital. She has further stated that appellant Siddhanath Goswami used to have bad intention towards her and his father

Chandrabali and uncle Omnath all of them also used to incite appellant Siddhanath Goswami to harass her, which has resulted in the said incident. She

has further stated that all these persons are bent upon to drive her family out from the village so that they can grab their property although a close

scrutiny of PW-4 Arti reveals that R had not disclosed so many things to her when Arti first arrived on the scene. This dying declaration has been

endorsed by Dr. Raman Gupta (PW-11), who has endorsed that the patient was fit and conscious during the statement.

Now the question that arises for consideration is whether the dying declaration of the deceased is worthy of convicting the appellant for the

offence alleged against him. To seek corroboration of the same, the prosecution has examined Arti Goswami (PW-5), who was the first one to reach

the spot. She has stated that when she heard the cries of the deceased’s son, she came out and saw that appellant Siddhanath Goswami was

running away from the house of the deceased and when she reached at the door, she saw that the door was closed from outside by a hook and after

removing the same, she opened the door and extinguished the fire. When she enquired from the deceased about her burn injuries, she was informed

that it was done by appellant Siddhanath Goswami. PW-5 Arti has further stated that half an hour after the incident, her husband had also come to the

spot but did not take the deceased to the hospital however deceased was taken to the Rewa hospital in the evening only by her husband. She has

denied that there was any dispute between appellant Siddhanath Goswami and her husband. She has admitted that in their village, the patient is usually

taken to Mangawan and from there Gangav. She has further admitted that the tractors and Ricksaws are available in their village. She has further

admitted that at that time entire village had gathered on the spot including Jamna DW-1, who also came to the spot immediately and at that time he

was talking to deceased and DW-1 Jamna, DW-3 Mahendra Singh and Uday Bahadur Singh, DW-2 Raj Bahadur Singh were also present before

whom she had conversation with Ranjana.

PW-4 Satyanath, husband of the deceased has stated that when he went to his house after the incident, his wife deceased R informed that

appellant Siddhanath Goswami raped her and thereafter set her ablaze. He has further stated that he initially went to Police Station Mangawan and

from there to the hospital. However, in his cross examination he has admitted that he reached on the spot at 1:30 PM and deceased R was taken to

the hospital only in the evening and that too on a cycle. The reason for this delay was that initially he went to the house of his elder brother to take

advice and after coming from there he took to the hospital. He has further stated that nobody came to police station or hospital when he was taking his

wife to the hospital. He has further stated that he had informed the police Chowki at the hospital. He has been asked a question that R had committed

suicide on account cruelty meted out her and other family to which he has denied. The testimony of this witness is apparently does not corroborate the

dying declaration of the deceased R so far as it relates to rape in which it is stated that the appellant tried to rape her where as PW-4 has stated that

the appellant also raped the deceased.

Similarly the prosecution has examined the Naib Tahsildar Vivek Gupta as PW-7, who has recorded the dying declaration Ex.P/7 of the deceased

on 29.10.2007 i.e. on the fourth day of the incident. He has further stated that the deceased was giving her statement in Baghelkhandi, which he has

written after translating the same. He has further stated that when he went to the deceased, her family members had surrounded her and he asked

them to keep away. He has admitted that he did not ask the deceased whether she was tutored for giving statement and whether she is fit to give

statement. He has further admitted that he did not ask whether Ranjana can sign or she has literate or not. He has admitted that due to burn injuries,

he took the thumb impression of the leg of the deceased. He has denied that he received an intimation on 26.10.2007 for recording the dying

declaration, but he did not come on the said date and only to cover his negligence he has recorded a fake dying declaration to which he has denied.

PW-8 Virendra Shrivastava, the Head Constable has proved Ex.P/10 and P/11 which are the memos sent to the SGMH police chowki for recording

dying declaration. According to him he had written to the Naib Tehsildar on the same date to take the dying declaration but is not aware as whether it

was recorded on that day or not.

PW-9 S.P.Singh, who was posted as SHO at the Police Station Mangawan had also recorded the statement of deceased R under Section 161 of

Cr.P.C. on 30.10.2007. He has stated that the deceased in her statement has stated that appellant Siddhanath Goswami tried to rape her and

subsequently set her ablaze. He has also seized the articles like plastic can, match box etc. from the spot. He has admitted in his cross examination

that he has not mentioned in the spot map on which place the door was closed from outside by a hook (Shankal). He has also admitted that he did not

secure the finger print on the plastic can. He has further admitted that the plastic can was empty although it smelled like kerosene. He has also

admitted that he did not secure the finger print on the match box as well. He has also admitted that he has not stated in the spot map that there was a

hook on the door of the room where Ranjana was burnt. He had not taken the photographs of the door. He has also admitted that he found the burnt

marks on the spot where the incident took place and nowhere else. He has also not shown the house of the prosecution witness Arti Goswami (PW-

5). A question was also put to him that R had not given any statement to which he has denied. He has further admitted that he did not enquire as to

why R’s statement was not taken earlier despite the fact that she was admitted in the hospital for four days.

In his defence the appellant has examined three witnesses i.e. Jamna (DW-1), Raj Bahadur (DW-2) and Mahendra Singh (DW-3). Jamna (DW-

1) has stated that he was the first person to reach the spot when the incident took place, however he did not see the appellant Siddhanath Goswami

running from the house of the deceased and in fact according to him, the door was closed from inside which he opened and entered into the house.

According to DW-4, Satyanath PW-4, husband of the deceased had his first wife, who wanted to come with him, which had resulted into a quarrel

between the deceased and her husband. According to him, the deceased had also threatened her husband Satyanath in the morning that if he brings

his first wife in the house, then she would commit suicide and thereafter Satyanath went away from the a tractor. This witness has further stated that

when he enquired from R as to why she has burnt herself, she told him that since her husband wants to bring his first wife, hence she has tried to

commit suicide. He has further stated that he did not see appellant Siddhanath Goswami on the spot. He has been cross examined by the State in

which he has stated that his house is around ten paces from the Ranjana’s house. He has further stated that since he saw smoke coming from the

house of Ranjana, he went to her house and other persons also came there including Raj Bahadur, Mahendra Singh etc.

Similarly, Raj Bahadur (DW-2) whose presence is also shown by DW-1 Jamna and PW-5 Arti Goswami to be one of the few persons, who came

to the spot immediately. According to this witness, deceased R informed him that her husband has beaten her, hence she has committed suicide. He

has stated that deceased R also told him that Satyanath and his family members were telling the deceased that they would take her to the hospital only

when she tells to the police that she has been burnt by appellant Siddhanath Goswami, otherwise she would not be treated. He has further stated that

R was kept in the house from around 2 O’clock till 6 in the evening. In his cross examination he has stated that he asked Satyanath, husband of

the deceased to take her to the hospital immediately, but he deliberately did not do it. Similarly, Mahendra Singyh (DW-3) has also reiterated the

statements given by other defence witnesses. In his cross examination, he has specifically stated that they had asked Satyanath to take Ranjana to the

hospital immediately, but he told them as she herself has done it hence they would not take her to the hospital.

It is seen that in the present case the incident has taken place on 26.10.2007 at around 2 O’clock, whereas the FIR has been lodged on

30.10.2007 at around 11:45 AM and the death has taken place on 01.11.200 at 6 pm. The reason for such delay in lodging the FIR is stated to be that

the complainant had not come to the police station and had gone to the hospital and after the MLC report, the police were informed. It is rather

surprising that in the case of burn injuries, the deceased was taken to the hospital after six hours and the police got information of the incident which

took place on 26.10.2007, only on the fifth day of the incident i.e. on 30.10.2007. The reason for lodging the FIR after a delay of 4-5 days appears to

be rather unnatural. It is still surprising that after sustaining burn injuries by the deceased, the husband of the deceased was initially went six kms.

away to the house of his elder brother to take advice and after coming from there he took R to the hospital that too on a cycle however, the deceased

has stated that she was taken in a Truck. It is also surprising that no other family members of the deceased’s house had made any endeavour to

take her to the hospital to facilitate early treatment. It is also strange that despite the fact that the deceased was taken to the hospital on 26.10.2007,

but her dying declaration (Ex.P-7) was recorded by the doctor only on 29.10.2007 i.e. on the fourth day when her condition had already deteriorated

from bad to worse as she died on 01.011.2007 only. Dr.S.K.Pathak (PW-10) who has conducted the post-mortem, a question has been put to him that

if a person is burnt by throwing kerosene oil over her body, in that case the burn injuries would not be on the entire body of the person and in fact it

would be different on different parts, to which this witness has replied that in that case if a person commits suicide by pouring kerosene over his/her

body, in that case the body would burn at the same time and would also have the similar burnt in that case. He has further admitted that it is true that

the deceased had burnt injuries of the same nature all over her body which clearly suggests that it may be a case of suicide.

Dr. Raman Gupta (PW-11) has admitted that when the deceased was taken to the hospital, she was also given various injections. He was also

asked a question as to which other medication was given to the injured to which he has replied that it can only be verified from bed-head tickets. But,

to the utter surprise of this court also prosecution has not proved any of the medical papers of the deceased like her MLC, bed-head ticket etc. which

clearly raises a doubt about the whole episode as the material piece of evidence which was available to the police was not brought on record by the

Investigating Officer. In the dying declaration Ex.P/7 the deceased has stated that father and uncle of the appellant wanted to drive her from the

village so that they can grab their property, but the prosecution has not come with any document on record that what was the property of the

deceased or her husband and what benefit could have been obtained by the appellant to drive the deceased and her husband out of the village. Even

other witnesses have not reflected the aforesaid facts in their deposition and in fact PW-4 Satyanath in para eight of his deposition has also stated that

he had no dispute with appellant Siddhnath a few days ago.

So far as the investigation is concerned, it is found that there were serious lapses on the part of the Investigating Officer in taking finger prints of

the essential articles viz. plastic can as also the match-box, which could have proved vital to bring home the charge of murder against the appellant.

According to Dr.S.K.Pathak (PW-10), he found equal burn injuries of similar nature of body, which is usually in the case of suicide. He has admitted

that in a case where kerosene oil is thrown on a person, it would burn on different parts of the body. Thus, there are serious contradictions in the story

of the prosecution. In this regard, reference may be had to the decision in the case of State of Maharashtra Vs. Sanjay, (2004) 13 SCC 314, the

relevant para 17 is reproduced as under:

“17. Thus, the version of homicide set up by the pro-secution as well as the version of suicide set up by the accused appear to be highly improbable

and do not in-spire confidence in the mind of the Court to believe either version. In this state of things, when two incred-ible versions confront the

Court, the Court has to give benefit of doubt to the accused and it is not safe to sustain the conviction. The contradictions in the two dy-ing

declarations coupled with the high degree of im-probability of the manner of occurrence as depicted by the prosecution case leaves the Court with no

option but to attach little weight to these dying declarations. It is not the plurality of the dying declarations that adds weight to the prosecution case, but

their qualitative worth is what matters. It has been repeatedly pointed out that the dying declaration should be of such nature as to inspire full

confidence of the court in its truthful-ness and correctness (vide the observations of a five-Judge Bench in Laxman v. State of Maharashtra 1).

Inasmuch as the correctness of dying declaration can-not be tested by cross-examination of its maker, “great caution must be exercised in

considering the weight to be given to this species of evidence†(SCC p. 713, para 3). When there is more than one dying declaration genuinely

recorded, they must be tested on the touch-stone of consistency and probabilities. They must also be tested in the light of other evidence on record.

Ad-opting such approach, we are unable to place implicit reliance on the dying declarations, especially when the High Court felt it unsafe to act on

them. This is apart from the question whether the deceased who became unconscious at the spot (as recorded in Ext. 37) with 95% burns and who

was found to be in disorientated condition two hours later, was in a fit condition to talk to the doctor at the time of her admission to the hospital. We

refrain from going into this aspect.â€​

In the case of Ravikumar Vs. State of T.N., (2006) 9 SCC 240, para 5 of the same reads as under:-

Section 32 of the Evidence Act, 1872 is an ex-ception to the general rule against hearsay. Sub-sec-tion (1) of Section 32 makes the statement of the

de-ceased admissible which is generally described as “dy-ing declarationâ€. The dying declaration essentially means statements made by the

person as to the cause of his death or as to the circumstances of the transac-tion resulting in his death. The admissibility of the dying declaration is

based upon the principle that the sense of impending death produces in man’s mind the same feeling as that of a conscientious and virtuous man

un-der oath. The dying declaration is admissible upon con-sideration that the declarant has made it in extremity, when the maker is at the point of

death and when every hope of this world is gone, when every motive to the falsehood is silenced and the mind is induced by the most powerful

consideration to speak the truth. Notwithstanding the same, care and caution must be exercised in considering the weight to be given to these species

of evidence on account of the existence of many circumstances which may affect their truth. The court has always to be on guard to see that the

statement of the deceased was not the result of either tutoring or prompting or a product of imagination. The court has also to see and ensure that the

deceased was in a fit state of mind and had the opportunity to ob-serve and identify the assailant. Normally, therefore, the court in order to satisfy

itself that the deceased was in fit mental condition to make the dying declaration, has to look for the medical opinion. Once the court is satisfied that

the declaration was true and voluntary, it undoubtedly, can base its conviction on the dying de-claration without any further corroboration. It cannot be

laid down as an absolute rule of law that the dying de-claration cannot form the sole basis of conviction un-less it is corroborated. The rule requiring

corroboration is merely the rule of prudence. These well-settled prin-ciples have been recognised and reiterated by this Court in Paniben v. State of

Gujarat ; Uka Ram v. State of Rajasthan; Laxman v. State of Maharashtra; P.V. Radhakrishna v. State of Karnataka; State of Maha-rashtra v.

Sanjay; Muthu Kutty v. State.

……………………….. He had satisfied himself be-fore recording the dying declaration that the deceased was in a position to give the

statement. He asked her name, her father’s name, etc. and specifically put a question to her whether she would be able to give the declaration

and she said “yesâ€. After satisfying that she would be able to give the declaration, he recorded the statement. Pushpa gave the dying declaration

in Telugu. The duty doctor informed that he knew Telugu and, therefore, whatever was said by Pushpa in Telugu was translated into Tamil by the

duty doctor, PW 9. After recording the declaration in Tamil, the same was translated by the duty doctor in Telugu to Pushpa and Pushpa had accepted

the same and to that effect a certificate had been given by him. He had obtained the thumb impression of Pushpa, the deceased, on the dy-ing

declaration.â€​

(emphasis supplied)

In the present case, admittedly, no other questions, apart from the dying declaration has been asked by the Naib Tehsildar to satisfy himself about the

fitness of the deceased. Even the name and husband’s name of the deceased have been noted before record- ing the dying declaration which is

also apparent from the manner in which the dying declaration Ex.P/7 has been recorded.

In view of the aforesaid discussion, Ex.P/7, the dying declaration of R cannot be given credence and cannot be made basis to convict the

appellant. Hence, this Court has no hesitation to hold that the prosecution has not been able to make out its case beyond reasonable doubt and as such

the appellant is entitled to be given the benefit of doubt for the following reasons:

a) Incident took place on 26.10.2007 in the noon before 2 O’ clock and R was taken to the hospital after a delay of around 6 hours despite her

husband PW-4 Satyanath reached the spot soon after the incident.

b) Even the FIR was lodged on 30.10.2007 i.e. on fifth day of the incident and the reason stated to be that the deceased was directly taken to the

hospital and no intimation was given to the police about the incident which in itself appears to be incongruous in the light of Ex.P/10 dated 26.102007

and P/11 dated 27.10.2007 which are the memos issued by the concerned hospital to the concerned police chowki giving rise to a reasonable doubt

about the prosecution case.

b) No dying declaration was recorded immediately either on 26.10.2007 or 27.10.2007 despite the intimation was given by the hospital to the

concerned police chowki vide Ex.P/10 on 26.10.2007 and vide Ex.P/11 on 27.10.2007. PW-7 Vivek Gupta, Naib Tahsildar has admitted that he did not

receive any intimation on 26.10.2007 in such circumstances, the presence of Pw7 in the hospital without intimation appears dubious.

c) Dying declaration Ex.P/7 recorded by PW-7 Vivek Gupta, Naib Tahsildar was also recorded in Baghelkhandi and was directly translated in Hindi in

the dying declaration, it was not read over to the deceased by the doctor hence giving rise to a reasonable doubt about its veracity as in the case of

Ravikumar (supra).

d) PW-7 Vivek Gupta, Naib Tahsildar has also stated that soon before recording dying declaration, the deceased R was surrounded by her relatives

thus, the tutoring cannot be ruled out.

e) There are no medical papers like MLC, Bed-head tickets etc. proved on record to demonstrate the actual physical condition of the patient/deceased

and which drugs were administered to her.

f) Defence witnesses DW1, 2 and 3 whose presence is also not denied by the prosecution witnesses have narrated a different story that the deceased

had committed suicide.

h) No efforts were made by the police to take finger prints of the kerosene can and the match box allegedly used by the appellant in committing the

murder.

In the result, the appellant is entitled to be given the benefit of doubt hence the criminal appeal stands allowed and the impugned judgment dated

26.8.2008 convicting the present appellant under Sections 302 and 450 of IPC passed by the Sessions Judge, Rewa in ST No.250/2007 is hereby set

aside. Since the appellant is in jail, it is directed that he be released forthwith if not required in any other case.

Let a copy of the order be sent to the trial court for its proper compliance.