Chattisgarh High Court
Deepak Diwakar vs State Of Chhattisgarh on 24 March, 2026
Author: Ramesh Sinha
Bench: Ramesh Sinha
1
2026:CGHC:13927-DB
ROHIT
KUMAR
CHANDRA
NAFR
Digitally signed
by ROHIT
KUMAR
CHANDRA
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRA No. 1205 of 2021
1 - Deepak Diwakar S/o Munna @ Rajkumar Aged About 26 Years R/o.
Village Fulwari Kala, P.S. Lalpur, District Mungeli Chhattisgarh., District :
Mungeli, Chhattisgarh
2 - Munna @ Rajkumar S/o. Late Chaitu Ram Diwakar, Aged About 49
Years R/o. Village Fulwari Kala, P.S. Lalpur, District Mungeli
Chhattisgarh., District : Mungeli, Chhattisgarh
3 - Smt. Prabha Diwakar W/o Munna @ Rajkumar Aged About 45 Years
R/o. Village Fulwari Kala, P.S. Lalpur, District Mungeli Chhattisgarh.,
District : Mungeli, Chhattisgarh
... Appellants
versus
State of Chhattisgarh Through Station House Officer, Lalpur, District
Mungeli (Chhattisgarh), District : Mungeli, Chhattisgarh
... Respondent
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For Appellants : Ms. Vijay Laxmi Soni, Advocate For Respondent/State : Mr. Sourabh Sahu, Panel Lawyer
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Hon'ble Mr. Ramesh Sinha, Chief Justice and Hon'ble Mr. Ravindra Kumar Agrawal, Judge Judgment on Board Per Ramesh Sinha, CJ 24.03.2026
1. This criminal appeal is directed against the judgment of conviction and order of sentence dated 24.09.2021 passed by the Sessions Judge, Mungeli, District Mulgeli (C.G.) in Sessions Trial No. 2 39/2019, whereby learned trial Court has convicted the appellants for offences under Sections 302 of the IPC and sentenced them to undergo imprisonment for life and fine of Rs.2,000/- each, in default of payment of fine to further undergo RI for one year to each appellant.
2. The prosecution case, in brief, is that on 08.06.2019, the accused allegedly made the deceased, Sama Diwakar, consume rat poison on the pretext that she did not sell liquor and had brought insufficient dowry. She was taken to the District Hospital, Mungeli for treatment. The hospital informed the City Kotwali Police Station, Mungeli vide Ex.P.15, pursuant to which treatment was administered to Sama Diwakar. The concerned police station recorded a complaint as Ex.P.16A, on the basis of which her medical examination was conducted as per Ex.P.16. The police also sought an opinion from the Medical Officer, Mungeli, regarding whether the deceased was in a condition to give a statement. In this regard, an intimation was recorded as per Ex.P.30, and as per Ex.P.17, Dr. K.S. Kanwar (PW-10) opined that Sama Diwakar was fit to give a statement, following which her statement was recorded as per Ex.P.18.
3. The District Hospital, Mungeli referred Sama Diwakar to a higher centre for treatment as per Ex.P.19; however, her family admitted her to Mahima Hospital, Mungeli, where her medical examination was conducted as per Ex.P.20 and Ex.P.21. Thereafter, she was 3 taken home by her father, Deshraj Dahariya (PW-1). Upon deterioration of her condition, she was admitted to CIMS Hospital, Bilaspur, where she died during treatment. The City Kotwali Police Station, Bilaspur (CIMS Outpost), registered the inquest intimation as per Ex.P.14 and issued a duty certificate as per Ex.P.4. The inquest report was prepared as per Ex.P.3, and an application for post-mortem examination was submitted. The post-mortem was conducted at CIMS Hospital, Bilaspur as per Ex.P.22. Since the incident occurred within the jurisdiction of Lalpur Police Station, the intimation was transferred accordingly as per Ex.P.23. The First Information Report was registered as per Ex.P.24. Dowry articles were seized as per seizure memo Ex.P.25, and a panchnama was prepared as per Ex.P.7. The spot map was prepared as per Ex.P.1 and Ex.P.2. After completion of investigation, a charge-sheet was filed before the Judicial Magistrate First Class, Lormi, registered as Criminal Case No. 610/2019. As the offences were exclusively triable by the Court of Sessions, the case was committed, and the accused were taken into custody as per the surrender order dated 04.10.2019, leading to registration of Sessions Case No. 39/2019.
4. Charges under Sections 304B and 302 of the IPC were framed against the accused by the learned trial Court. The charges were read over and explained to them, to which they pleaded not guilty and claimed trial. During their examination under Section 313 of the CrPC, the accused denied the prosecution allegations and 4 stated that the witnesses had deposed falsely due to enmity. When called upon to enter defence under Section 233 of the CrPC, the accused declined to examine any witness.
5. In support of its case, the prosecution examined Deshraj Dahariya (PW-1), Pushpa Dahariya (PW-2), Bhola Bhaskar (PW-3), Budhara Bai (PW-4), Shankar (PW-5), Manoj Singh Thakur (PW-
6), Abhishek Pahari (PW-7), Hemant Ahire (PW-8), Pushpendra Kumar (PW-9), Dr. K.S. Kanwar (PW-10), Dr. S.K. Patil (PW-11), Dr. Alka Minj (PW-12), Karuna Katle (PW-13), Salikram Rajput (PW-14), Dr. R.K. Markam (PW-15), Mankaram Dhruv (PW-16), Qadir Khan (PW-17), Yogesh Gupta (PW-18), and T.R. Patel (PW-19).
6. The trial Court, after appreciating the oral and documentary evidence available on record, by judgment dated 24.09.2021, convicted and sentenced the appellants as mentioned in the opening paragraph of this judgment. The said judgment is under challenge in the present criminal appeal preferred under Section 374(2) of the CrPC by the appellants.
7. Learned counsel for the appellants submits that the impugned judgment of conviction and sentence is illegal, perverse, and based on improper appreciation of evidence. It is contended that the prosecution case primarily rests upon the alleged dying declaration of the deceased; however, the same has been recorded by an Assistant Sub Inspector and not by any Executive 5 Magistrate. It is argued that recording of a dying declaration by a police officer, without proper certification of fitness by a competent medical officer and without following the safeguards prescribed under law, renders the said dying declaration doubtful and unreliable. Therefore, the conviction based on such a dying declaration cannot be sustained in the eyes of law. It is further submitted that the conviction is also based upon the FSL report (Ex.-C/01), but the same has not been duly proved in accordance with law. The prosecution has failed to examine the competent expert or the person who prepared the FSL report to prove its contents, authenticity, and correctness. In absence of proper proof and admissibility of the FSL report, the same could not have been relied upon by the learned trial Court for recording the conviction of the appellants. Thus, the entire foundation of the prosecution case becomes shaky and unreliable. It is, therefore, prayed that the impugned judgment of conviction and sentence deserves to be set aside and the appellants be acquitted of the charges levelled against them.
8. Per contra, learned counsel for the State opposes the submissions made on behalf of the appellants and submits that the impugned judgment of conviction and sentence has been passed by the learned trial Court after due and proper appreciation of the oral and documentary evidence available on record. He further submitted that the dying declaration of the deceased cannot be doubted on the ground that it was recorded 6 by an Assistant Sub Inspector, as it was supported by medical certification regarding the fitness of the deceased to give the statement. Dr. K.S. Kanwar (PW-10), who examined the deceased, specifically opined and certified that Sama Diwakar was capable of giving a statement, and this certification forms part of the record (Ex.P.17). The learned trial Court rightly considered this certification while appreciating the evidentiary value of the dying declaration. It is submitted that the law recognizes that a dying declaration, if voluntarily made and supported by medical certification regarding the deceased's capacity to understand and communicate, is admissible even if recorded by a police officer. In the present case, the certification by the medical officer removes any doubt about the competency of the deceased to make a statement, and the statement has been corroborated by other evidence on record. Regarding the FSL report, it is reiterated by learned State counsel that the report was duly exhibited and forms corroborative evidence in support of the prosecution case. The absence of examination of the officer who prepared the FSL report does not affect its admissibility when considered along with other corroborative material and oral evidence. He lastly submits that the learned trial Court rightly relied upon the dying declaration and other evidence, and the conviction and sentence of the appellants are well-founded, as such, the appeal deserves to be dismissed.
9. We have heard learned counsel for the parties and considered 7 their rival submissions made herein-above and also went through the record with utmost circumspection.
10. The first question for consideration would be, whether the trial Court was justified in holding that death of deceased Sama Diwakar's occur under circumstances difference from normal ?
11. The trial Court, relying upon the statement of Dr. R.K. Markam (PW-15), who has conducted postmortem over the body of deceased Sama Diwakar, vide Ex.P/22, who has stated that on internal examination, the deceased's head was normal. The brain and spinal cord were congested and pale. There was approximately one liter of pale fluid in the chest. The pleura, larynx, and trachea, and both lungs were paroxysmal, congested, and pale. The right chamber of the heart was filled with blood and the left chamber was empty. The free fluid in the stomach was yellow in colour. The membrane, intestinal membrane, mouth and esophagus were congested. The outer part of the stomach was yellowish. There was swelling and bleeding in the inner part of the stomach. Blood clots were present. There was foul smell coming from the stomach. There was digested matter in the small intestine due to which the same smell was present. Rest of the organs were yellowish. According to the family members, the deceased was suffering from rat poison. After the postmortem of the deceased, the viscera was preserved and the concerned police personnel was consulted for viscera examination from FSL. 8
12. Witness Dr. R.K. Markam (PW15) stated that the cause of death of the deceased was withheld. A death opinion could be given only after reviewing the viscera report from the FSL. At the time of the post-mortem, the period of death appeared to be between 12 hours. Their report is Ex.P.22, which bears his signature on the aforementioned portion and Dr. Mrs. S. Mahajan's signature on the aforementioned portions.
13. It has been observed by learned trial Court that the testimony of Dr. R.K. Markam (P.W.15) has not been challenged by the accused. Dr. R.K. Markam (P.W.15) is an expert witness. There is no basis in the case to disbelieve his testimony. This witness states that the deceased's death occurred within 12 hours of the inquest. However, according to Dr. R.K. Markam (A.W.15), the deceased's death was attributed to her family members that the death was due to rat poison and hence, it is stated that the opinion should be given after chemical examination of the viscera of the deceased. In this regard, on perusal of the viscera report Ex.C.1, it is mentioned that there was presence of Phosphorus (Rat Poison) in the stomach, intestine, heart, lungs, liver, kidney, spleen and blood of the deceased in exhibits ABC and D. In this regard, the accused have not challenged the fact that the death of the deceased was not due to rat poison, but instead, the suggestion that the deceased consumed poison herself due to distress has been presented in paragraph 13 of the cross- examination of witness Deshraj Dahariya (PW-1). In such a 9 situation, it is clear that the death of the deceased was due to consumption of rat poison, other than normal circumstances.
14. The said finding recorded by the trial Court is a finding of fact based on evidence available on record, which is neither perverse nor contrary to record. Even otherwise, it has not been seriously disputed by the learned counsel for the appellant. We hereby affirm the said finding.
15. The next question for consideration would be, whether the trial Court has rightly held that the accused/ appellant, being husband and relatives of the the deceased, intentionally or knowingly killed the deceased Sama Diwaker by administering rat poison to her ?
16. There is no eyewitness in the case, and the prosecution's entire case is based on circumstantial evidence. The court may convict the accused even on the basis of circumstantial evidence, but it must satisfy itself that the circumstances from which guilt can be inferred have been proved by the unimpeachable evidence adduced by the prosecution, and that all the circumstances, taken together, are not only conclusive in nature but also complete a chain, thereby unambiguously pointing to the guilt of the accused alone, and are not amenable to any explanation inconsistent with the theory of the accused's guilt.
17. In this case, it is undisputed that the deceased died from consuming rat poison. The prosecution's case rests solely on the fact that the deceased recorded a dying declaration after the 10 incident. It is well-established law that if the dying declaration is credible, the Court can convict even in the absence of corroboration.
18. At this stage, it would be appropriate to notice Section 32 (1) of the Evidence Act which states as under: -
"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"
19. 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 11 Supreme Court have considered the scope and ambit of Section 32of the Evidence Act, particularly, Section 32(1) on various occasions including in the matter of Sharad Birdhichand Sarda v. State of Maharashtra1 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 1 (1984) 4 SCC 116 12 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 32does 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."
13
20. Thereafter, in the matter of Devinder alias Kala Ram and others v. State of Haryana2, 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."
2 (2012) 10 SCC 763 14
21. In the matter of Purshottam Chopra and another v. State (Government of NCT of Delhi) 3, 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 3 (2020) 11 SCC 489 15 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."
22. The question for consideration is, whether the statement of the deceased recorded by Salikram Rajput (PW-14) during the course of treatment is relevant under Section 32 of the Evidence Act or not?
23. 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 her death, or as to any of the circumstances of the transaction which resulted in her 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 16 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 Punjab4 reviewing the earlier authorities.
24. The Supreme Court in the matter of Irfan @ Naka v. The State of Uttar Pradesh5 has considered certain parameters to trust whether a dying declaration could be acted upon solely for securing conviction or not. It was observed as under:-
"62.There is no hard and fast rule for determining when a dying declaration should be accepted; the duty of the Court is to decide this question in the facts and surrounding circumstances of the case and be fully convinced of the truthfulness of the same. Certain factors below reproduced can be considered to determine the same, however, they will only affect the weight of the dying declaration and not its admissibility: -
(i) Whether the person making the statement was in expectation of death?
(ii) Whether the dying declaration was made at the earliest opportunity? "Rule of First Opportunity"
(iii) Whether there is any reasonable suspicion to believe the dying declaration was put in the mouth of the dying person?
(iv) Whether the dying declaration was a product of prompting, tutoring or leading at the instance of police or any interested party?
(v) Whether the statement was not recorded properly? 4 AIR 2000 SC 2324 5 2023 SCC OnLine SC 1060 17
(vi) Whether, the dying declarant had opportunity to clearly observe the incident?
(vii) Whether, the dying declaration has been consistent throughout?
(viii) Whether, the dying declaration in itself is a manifestation / fiction of the dying person's imagination of what he thinks transpired?
(ix) Whether, the dying declaration was itself voluntary?
(x) In case of multiple dying declarations, whether, the first one inspires truth and consistent with the other dying declaration?
(xi) Whether, as per the injuries, it would have been impossible for the deceased to make a dying declaration?
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."
25. With regard to the absence of separate certificate regarding fit state of mind of victim Priya Deep before making dying declaration, relying on the judgment, the Supreme Court in the matter of Paparambaka Rosamma and others v. State of A.P. 6 has held as under:-
"9. It is true that the medical officer Dr. K.Vishnupriya Devi (PW 10) at the end of the dying declaration had certified 6 (1999) 7 SCC 695 18 "patient is conscious while recording the statement". It has come on record that the injured Smt. Venkata Ramana had sustained extensive burn injuries on her person. Dr. P.Koteswara Rao (PW 9) who performed the post-mortem stated that injured had sustained 90% burn injuries. In this case as stated earlier, the prosecution case solely rested on the dying declaration. It was, therefore, necessary for the prosecution to prove the dying declaration as being genuine, true and free from all doubts and it was recorded when the injured was in a fit state of mind. In our opinion, the certificate appended to the dying declaration at the end by Dr. Smt. K.Vishnupriya Devi (PW 10) did not comply with the requirement inasmuch as she has failed to certify that the injured was in a fit state of mind at the time of recording the dying declaration. The certificate of the said expert at the end only says that "patient is conscious while recording the statement". In view of these material omissions, it would not be safe to accept the dying declaration (Ex.P-14) as true and genuine and as made when the injured was in a fit state of mind. From the judgments of the courts below, it appears that this aspect was not kept in mind and resultantly they erred in accepting the said dying declaration (Ex.P-14) as a true, genuine and as made when the injured was in a fit state of mind. In medical science two stages namely conscious and a fit state of mind are distinct and are not synonymous. One may be conscious but not necessarily in a fit state of mind. This distinction was overlooked by the courts below."
26. Upon reappreciation of the entire evidence on record, this Court finds that the conviction of the appellant is primarily founded upon the alleged dying declaration (Ex.P-18) said to have been recorded by the Investigating Officer Salikram Rajput (PW-14) 19 after giving certification by the treating Dr. K.S. Kanwar (PW-10) that the deceased was in a fit state of mind to given statement.
27. In light of the above judicial precedents, it is clear that if the dying declaration is credible, the accused can be convicted without any corroboration. In this regard, the verbatim quoting of the deceased Sama Diwakar's dying declaration (Ex.P-18) appears to be justified :
dFku ej.kklUu Jherh lek nhokdj ifr nhid nhokdj mez 23 o"kZ] lkfdu Qwyokjh] Fkkuk ykyiqj] ftyk eqaxsyh (N0x0) eSa mijksDr irs esa jgrh gwWa A [ksrh fdlkuh ,oa ?kjsyw dke djrh gwWa A esjs llqjky ds lHkh yksx nk: ugha csprh gks dgdj cksy jgs Fks vkSj ekjihV fd;s gSa] jkgiV] M.Mk ls ekfjl gs A vkSj esjs lkl] llqj] uun] ifr yksx idM+dj eq>s eqlok nokbZ fiyk;s gSa A fQj esjs ikik dks rfc;r [kjkc gS dgdj mUgha yksx cqyk;s gSa rFkk esjs firk (ikik) nknk yksx vk;s vkSj fopkjiqj nknk ds ?kj ys x;s Fks A ogka ls eq>s fQj eqx a syh vLirky yk;s gSa A esjh 'kknh dks pkj o"kZ gks x;k gS A esjs cka;s gkFk ds dykbZ ds mij dks esjs ifr yksx idM+dj CysM ls dkVs Hkh gSa A ?kj esa lHkh yksx Fks A esjk ek;dk xzke mLykiqj gS A gLrk0 lek gLrk0 @ **v vLi"V v** ,0,l0 vkbZ0 xokg gLrk0 **v vLi"V v** 8@6@2019 8@6@19 11-10 cts esjs le{k ejht dk c;ku fy;k x;k gLrk0@ **v vLi"V v**
28. Upon perusal of the dying declaration (Ex. P-18), it transpires that the deceased woman stated before the Investigating Officer, in the presence of a doctor, that her mother-in-law, father-in-law, husband, and sister-in-law had administered rat poison to her. 20 She further stated that her in-laws used to taunt her for not selling liquor and had also assaulted her.
29. In this regard, Dr. K.S. Kanwar (PW-10) deposed that on 08.06.2019, while he was serving as a Medical Officer at City Kotwali Police Station, Mungeli, Sama Diwakar was admitted to the hospital after allegedly being administered rat poison by her husband. He reported the matter to the police station as per Ex. P-15. Upon receiving a written request from the police for medical examination, he examined the woman and found her conscious. He stated that she informed him that her in-laws had administered rat poison to her. He further deposed that the police sought his opinion regarding the fitness of the injured woman to give a statement, and he submitted his report (Ex. P-17), certifying that she was capable of making a statement.
30. Salik Ram Rajput (PW-14) stated that a memo (Ex. P-30) was prepared to ascertain whether the deceased was in a fit condition to give her statement. Based on this, Dr. K.S. Kanwar (PW-10) submitted his report (Ex. P-17) certifying her fitness. PW-14 further admitted that he recorded the dying declaration of the deceased and signed part 'A' of Ex. P-18.
31. Salik Ram Rajput (PW-14) further deposed that on 08.06.2019, he recorded the dying declaration of Sama Diwakar vide Ex. P-18. Dr. K.S. Kanwar (PW-10) also confirmed that the dying declaration was recorded in his presence.
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32. The mother of the deceased, Pushpa Diwakar (PW-2), also stated that she was present at the time of recording of the dying declaration. In paragraph 2 of her examination-in-chief, she deposed that the police recorded her daughter's statement at District Hospital, Mungeli, wherein the deceased stated that her mother-in-law, father-in-law, sister-in-law, and husband had forcibly made her consume rat poison. She further clarified that the assault was inflicted upon her daughter for not selling liquor. She also stated that these facts were stated in the presence of Dr. K.S. Kanwar. PW-10 corroborated this fact and affirmed that the dying declaration (Ex. P-18) was recorded in his presence.
33. In the aforesaid circumstances, there exists no material on record to disbelieve the dying declaration (Ex.P-18) made by the deceased. Merely because the dying declaration was recorded by the Investigating Officer does not render it inadmissible in law. It is well settled that a dying declaration can be recorded by any person, including a police officer, provided it is shown that the declarant was in a fit state of mind and the statement was made voluntarily and truthfully. In the present case, the dying declaration was recorded after obtaining due certification from the medical officer regarding the fitness of the deceased, and the same was recorded in his presence. Therefore, the dying declaration is admissible in evidence and inspires full confidence.
34. In light of the judicial precedents laid down by the Hon'ble Supreme Court, it stands proved that the accused, with the 22 intention to cause the death of the deceased, subjected her to physical assault and forcibly administered rat poison for not selling liquor, resulting in her death under unnatural circumstances.
35. Upon a comprehensive appreciation of the evidence on record, particularly the dying declaration (Ex. P-18), this Court holds that the same is legally admissible, notwithstanding the fact that it was recorded by the Investigating Officer. The declaration was recorded in the presence of a medical officer after due certification of the declarant's mental fitness and is corroborated by the testimony of Pushpa Diwakar (PW-2), Dr. K.S. Kanwar (PW-10) and Salikram Rajput (PW-14).
36. The dying declaration is found to be voluntary, truthful, and reliable, and there is no reason to discard or doubt its evidentiary value. The prosecution has successfully proved beyond reasonable doubt that the accused persons intentionally caused the death of the deceased by administering rat poison after subjecting her to physical assault.
37. Accordingly, the findings recorded by the trial Court are well-
reasoned and do not warrant any interference. The appeal, being devoid of merit, is hereby dismissed.
38. It is stated at the Bar that the accused / appellants are in jail, they shall serve out the sentence as ordered by the learned trial Court. 23
39. Registry is directed to send a certified copy of this judgment along with the original record of the case to the trial court concerned forthwith for necessary information and compliance and also send a copy of this judgment to the concerned Superintendent of Jail where the appellants are undergoing their jail sentence to serve the same on the appellants informing them that they are at liberty to assail the present judgment passed by this Court by preferring an appeal before the Hon'ble Supreme Court with the assistance of High Court Legal Services Committee or the Supreme Court Legal Services Committee.
Sd/- Sd/-
(Ravindra Kumar Agrawal) (Ramesh Sinha)
Judge Chief Justice
Chandra