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IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR
Sanjay K. Agrawal, Deepak Kumar Tiwari, JJ.
Dev Lal Sonwani @ Dukhiram, S/o Dayali - Appellant
Versus
State of Chhattisgarh - Respondent
Criminal Appeal No.108 of 2018
Decided On : 11-11-2022
Criminal Procedure Code, 1973 - Section 374(2), 161, 313, 162, (2) – Indian Penal Code, 1860 - Section 302 - Evidence Act, 1872 - Section 32, (1) - Murder Offence – Appeal against Conviction - Appellant and his father (now acquitted) in furtherance of their common intention, poured kerosene oil on the body of deceased and set him on fire, who suffered grievous deep burn injuries and died – It would not be safe to convict appellant on basis of Section 161 statement treated as dying declaration. [Para 36]
Finding of the Court:
In last part of statement of deceased recorded, he has only stated that his brother-in-law has poured kerosene oil on his body, it is not clear as to which brother- in-law deceased was pointing out, as the deceased had three brothers-in-law though statement recorded by police could be proved to be dying declaration in view of exception carved out under Section 162(2) of CrPC, but it would not be safe to convict appellant on basis of Section 161 statement treated as dying declaration – Court is of opinion that conviction recorded by trial Court on basis of dying declaration Ex.P-20 cannot be sustained and furthermore, statement of deceased recorded under Section 161 of CrPC treated as dying declaration under Section 32(1) of Evidence Act does not relate to cause of death of deceased, particularly when statement has not been tendered into evidence nor it has been put to accused under Section 313 of CrPC specifically except question No.66 and therefore that piece of evidence cannot be used against appellant - As such, conviction and sentences imposed upon appellant under Section 302 of IPC are liable to be quashed and are hereby quashed.
Result: Appeal allowed.
JUDGMENT :
[Sanjay K. Agrawal, J.]
1. This criminal appeal preferred by the appellant under Section 374(2) of the CrPC is directed against the impugned judgment dated 8-1-2018 passed by the Additional Judge to the Court of Additional Sessions Judge, Mungeli, in Sessions Trial No.H- 41/2014, by which he has been convicted for offence under Section 302 of the IPC and sentenced to undergo imprisonment for life and pay a fine of Rs. 500/-, in default, to further undergo rigorous imprisonment for one year.
2. Case of the prosecution, in brief, is that on 28-5-2014, the present appellant and his father Dayali (now acquitted) in furtherance of their common intention, poured kerosene oil on the body of deceased Chande Das and set him on fire, who suffered grievous deep burn injuries and died in hospital on 3-6-2014, and thereby committed the offence. It is admitted position on record that the deceased was son-in-law of Dayali and brother-in-law of the appellant. Marriage of the deceased was solemnized at Village Rehunta in chudi form with Sunita – daughter of Dayali (acquitted accused) and sister of the appellant herein. At the relevant point of time, before the incident, the deceased & Sunita had gone to Village Rehunta with the appellant and the acquitted accused for participating in a marriage and after participating in the marriage, the deceased came back to his village, but his wife Sunita stayed therein and for bringing her back, on 28-5-2014, the deceased had gone to his father-in-law’s house and after reaching the house, he asked about the whereabouts of Sunita finding her not present in the house, on that, dispute arose and altercation took place between the deceased with the appellant and the acquitted accused and it is the case of the prosecution that during the course of altercation with deceased Chande Das, the appellant herein & his father Dayali (acquitted accused) poured kerosene oil over the body of the deceased and set him on fire due to which, he suffered 60% burn injuries and rushed away from the spot. Chande Das was helped by Rajeshwari Bai (PW-4), Radhelal (PW-2) & Sanjay Sonwani (PW-8) and he has been admitted to the District Hospital, Mungeli. Head Constable Salik Ram Rajput (PW-17), at that point of time, recorded this fact in the roznamcha sanha of the police station at serial No.1689 and true copy of the roznamcha sanha is exhibited as Ex.P-28C, and further, medical examination form of Chande Das is exhibited as Ex.P-16A. On the same day, on 28-5- 2014, statement of deceased Chande Das was recorded by Salik Ram Rajput (PW-17) and this document has not been tendered into evidence before the trial Court, but it forms part of the record as an un-exhibited document. During the course of treatment at Mungeli Hospital, medical condition of Chande Das became worst and it was deteriorating, therefore, he was referred to Chhattisgarh Institute of Medical Sciences (CIMS) where he was admitted in Trauma Centre on 29-5-2014 and his admission ticket has been exhibited as Ex.P-19. On the same date i.e. 29-5-2014, dying declaration of Chande Das was recorded vide Ex.P-20 in presence of Dr. Shashi Kant Sahu (PW-10). He remained hospitalized up to 3-6-2014, but on account of burn injuries, he succumbed to the burn injuries on 3-6-2014 at 12.45 p.m.. The death memo of deceased Chande Das has been exhibited as Ex.P-21. Thereafter, morgue at zero was registered at Police Station Tarbahar, Bilaspur on death of Chande Das on the basis of information given by Prakash Chand (PW-11) vide Ex.P-22 which has been transferred to Police Station City Kotwali, Mungeli and registered as morgue No.3/2014 vide Ex.P-25. On the basis of morgue, FIR has been registered vide Ex.P-26 against the appellant and acquitted accused Dayali and the wheels of investigation started running. Memorandum statement of co-accused Dayali has been recorded by the police vide Ex.P-2 pursuant to which a gallon/bottle containing small quantity of kerosene oil has been
Section 32(1) of Evidence Act relates to statement made by a person before his death.
Dying declarations can serve as the sole basis for conviction if deemed credible and made in a fit state of mind, as established in this case.
The court affirmed that a dying declaration can serve as the sole basis for conviction if it is credible, voluntary, and made in a fit state of mind.
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