Chattisgarh High Court
Rakesh Parde vs State Of Chhattisgarh on 12 December, 2022
Cr.A.No.1142/2015
Page 1 of 23
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Appeal No.1142 of 2015
{Arising out of judgment dated 31-8-2015 in Sessions Trial No.182/2013
of the 1st Additional Sessions Judge, Durg}
Judgment reserved on: 24-11-2022
Judgment delivered on: 12-12-2022
1. Rakesh Parde, S/o Subhash Parde, aged about 23 years.
2. Smt. Rekha Parde, W/o Subhash Parde, aged about 46 years.
3. Subhash Parde, S/o Late Dharamdas Parde, aged about 56 years.
All R/o R.S.S. Market, Shop No.107, New Bus Stand, Powerhouse,
Bhilai, Tahsil and District Durg (C.G.)
(In Jail)
---- Appellants
Versus
State of Chhattisgarh, Through Station House Officer, Police of
Police Station Chhawani, District Durg (C.G.)
---- Respondent
--------------------------------------------------------------------------------------------------
For Appellants: Mr. B.P. Singh, Advocate.
For Respondent/State: Ms. Ruchi Nagar, Deputy Government Advocate.
-------------------------------------------------------------------------------------------------
Hon'ble Shri Sanjay K. Agrawal and
Hon'ble Shri Rakesh Mohan Pandey, JJ.
C.A.V. Judgment
Sanjay K. Agrawal, J.
1. By way of this criminal appeal under Section 374(2) of the CrPC,
three appellants herein have called in question legality, validity and
correctness of the impugned judgment dated 31-8-2015 passed by
the 1st Additional Sessions Judge, Durg in Sessions Trial
No.182/2013 by which they have been convicted for offences under
Cr.A.No.1142/2015
Sections 498A read with Section 34, 304B read with Section 34 &
302 read with Section 34 of the IPC and sentenced to undergo
rigorous imprisonment for one year & pay a fine of ₹ 500/- each, in
default, to further undergo additional rigorous imprisonment for one
month; rigorous imprisonment for ten years; and imprisonment for
life and to pay a fine of ₹ 1,000/- each, in default, to further undergo
additional rigorous imprisonment for two months, respectively.
2. Case of the prosecution, in brief, is that deceased Kavita was
married to Rakesh Parde - appellant No.1 herein and the
appellants used to treat her with cruelty demanding dowry. On 9-1-
2013 at 10.00 a.m. in the morning, after seven years of marriage of
Kavita with appellant No.1, he (appellant No.1) poured kerosene oil
on the body of Kavita and set her ablaze and thereby committed the
offence. Further case of the prosecution is that on 9-1-2013 at
10.00 a.m., deceased Kavita was in the kitchen of the house and at
that time, three appellants herein came there and started
quarrelling with her demanding dowry and in furtherance of
common intention, appellant No.1 poured kerosene oil on her body
while appellants No.2 & 3 caught hold of her and appellant No.1 set
her ablaze by which she suffered deep burn injuries. Kavita was
admitted in the hospital in burnt condition and vide Ex.P-5, the
concerned doctor has informed to Police Station Supela pursuant to
which an application was made requesting the medical officer to
certify as to whether injured Kavita is in fit medical condition to
make dying declaration or not which was certified by the medical
officer to be in fit medical condition on 9-1-2013 at 3.05 p.m..
Cr.A.No.1142/2015
Accordingly, dying declaration of the deceased was recorded vide
Ex.P-8 by Executive Magistrate G.P. Sharma (PW-4) in which she
did not implicate any of the appellants herein stating the burn
injuries on account of personal / family reasons. Thereafter, brother
of the deceased - Raju Kailash Kuhikar (PW-8) gave an application
to the Station House Officer, Police Station Chhawani, Bhilai on 11-
1-2013 vide Ex.P-11 to re-record the dying declaration of Kavita
alleging undue influence and inducement while recording dying
declaration Ex.P-8 pursuant to which again, dying declaration of
Kavita was recorded on 15-1-2013 vide Ex.P-9 in which the present
appellants were also implicated and thereafter, Kavita succumbed
to the injuries sustained by her and died on 16-1-2013. Inquest
over the dead body of the deceased was conducted vide Ex.P-10.
Stove, match stick, burnt clothes, kerosene oil, etc., were recovered
from the spot and dead body was sent for postmortem which was
conducted by Dr. Bhewan Markam (PW-10) vide Ex.P-18 and
cause of death was stated to be shock and sepsis due to
antemortem extensive deep burn. Seized articles were sent for
forensic examination to the Forensic Science Laboratory, Raipur
from where report Ex.P-25 was brought on record in which
kerosene particles were found on the said articles.
3. Statements of the witnesses were recorded under Section 161 of
the CrPC. After usual investigation, the accused / appellants were
charge-sheeted for offences under Sections 498A read with Section
34, 304B read with Section 34 & 302 read with Section 34 of the
IPC and charge-sheet was filed before the jurisdictional criminal
Cr.A.No.1142/2015
court and the case was committed to the Court of Sessions from
where the Additional Sessions Judge received the case on
committal for trial and hearing and disposal in accordance with law.
4. The accused / appellants abjured the guilt and entered into
defence. In order to bring home the offence, the prosecution
examined as many as twelve witnesses and exhibited 28
documents. The defence has examined none, but exhibited four
documents Exs.D-1 to D-4.
5. The trial Court upon appreciation of oral and documentary evidence
on record, proceeded to convict the appellants under Sections
498A read with Section 34, 304B read with Section 34 & 302 read
with Section 34 of the IPC and sentenced them in the manner
mentioned in the opening paragraph of this judgment against which
the instant appeal under Section 374(2) of the CrPC has been
preferred.
6. Mr. B.P. Singh, learned counsel appearing for the appellants, would
submit that the deceased died due to an accidental fire in the
kitchen. Her first dying declaration was recorded on 9-1-2013 in
which she stated that she had suffered an accidental burn in the
kitchen. Subsequently, pursuant to the complaint made by Raju
Kailash Kuhikar (PW-8) - brother of the deceased, another dying
declaration was recorded on 15-1-2013 wherein she made
accusations against the appellants. However, the first dying
declaration was certified by the doctor as being fit medical condition
to make dying declaration. There is no such certification in the
second dying declaration. The second dying declaration was
Cr.A.No.1142/2015
signed inter alia by the mother of the deceased - Laxmi Kailash
Kuhikar (PW-7) and has been acknowledged during cross-
examination. Both the dying declarations were recorded by the
same Naib Tahsildar. As such, the second dying declaration being
not reliable, the appellants are entitled for the benefit of doubt and
the appeal deserves to be allowed.
7. Ms. Ruchi Nagar, learned Deputy Government Advocate appearing
for the State / respondent, would support the impugned judgment
and would submit that marriage of the deceased was hardly three
years old and death is unnatural. The first dying declaration sought
to be relied upon does not bear confirmatory signature of the doctor
before recording dying declaration and after conclusion on the
declaration itself. Strong reliance has been placed on the evidence
of the mother and brother of the deceased to submit that there is
evidence of harassment for purposes of dowry. She would further
submit that the appeal deserves to be dismissed.
8. We have heard learned counsel for the parties and considered their
rival submissions made herein-above and also went through the
original records of the trial Court with utmost circumspection and
carefully as well.
9. At this stage, it is appropriate 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
Cr.A.No.1142/2015
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"
10. The general ground of admissibility of the evidence mentioned in
Section 32(1) of the Evidence Act 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
Cr.A.No.1142/2015
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 or
this very fact, is an exception to the rule of hearsay evidence.
11. 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 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" as under:
"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
1 (1984) 4 SCC 116
Cr.A.No.1142/2015
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."
12. In the matter of Purshottam Chopra and another v. State
(Government of NCT of Delhi)2, 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
2 (2020) 11 SCC 489
Cr.A.No.1142/2015
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."
Cr.A.No.1142/2015
13. Where several dying declarations are made, the test is whether the
version of the deceased is proved to be false in respect of the
integral part of the case. A dying declaration should satisfy all the
necessary tests and one such important test is that if there are
more than one dying declarations they should be consistent
particularly in material particulars [see Kamla v. State of Punjab3].
14. In the matter of Mohanlal Gangaram Gehani v. State of
Maharashtra4 their Lordships of the Supreme Court held that where
there are more than one statement in the nature of dying
declaration made by the deceased, one first in point of time must
be preferred.
15. In a recent judgment rendered by their Lordships of the Supreme
Court in the matter of Makhan Singh v. State of Haryana5 while
considering the issue of multiple dying declarations, their Lordships
have held as under:
"9. It could thus be seen that the Court is required to
examine as to whether the dying declaration is true and
reliable; as to whether it has been recorded by a person
at a time when the deceased was fit physically and
mentally to make the declaration; as to whether it has
been made under any tutoring/duress/prompting. The
dying declaration can be the sole basis for recording
conviction and if it is found reliable and trustworthy, no
corroboration is required. In case there are multiple dying
declarations and there are inconsistencies between
them, the dying declaration recorded by the higher officer
like a Magistrate can be relied upon. However, this is
with the condition that there is no circumstance giving
rise to any suspicion about its truthfulness. In case there
are circumstances wherein the declaration has not been
found to be made voluntarily and is not supported by any
3 (1993) 1 SCC 1
4 AIR 1982 SC 839
5 AIR 2022 SC 3793 : 2022 SCC Online SC 1019
Cr.A.No.1142/2015
other evidence, the Court is required to scrutinize the
facts of an individual case very carefully and take a
decision as to which of the declarations is worth
reliance..
*** *** *** ***
20. We therefore find that in the facts and
circumstances of the present case, the first dying
declaration (Ex. DO/C) will have to be considered to be
more reliable and trustworthy as against the second one
(Ex. PE). In any case, the benefit of doubt which has
been given to the other accused by the trial court, ought
to have been equally given to the present appellant when
the evidence was totally identical against all the three
accused."
16. In the matter of Khushal Rao v. State of Bombay6, it has been held
that dying declaration can form the sole basis of conviction
provided that it is free from infirmities and satisfies various tests.
Relying upon the decision of the Supreme Court in Khushal Rao
(supra), it has been held by the Supreme Court in the matter of
Smt. Kamla v. State of Punjab7 that the statement should be
consistent throughout if the deceased had several opportunities of
making such dying declarations, that is to say, if there are more
than one dying declaration they should be consistent. It has been
further held that if a dying declaration is found to be voluntary,
reliable and made in fit mental condition, it can be relied upon
without even any corroboration. It has also been held that in a case
where there are more than one dying declarations if some
inconsistencies are noticed between one and the other, the court
has to examine the nature of the inconsistencies namely whether
they are material or not. In scrutinising the contents of various
6 AIR 1958 SC 22
7 AIR 1993 SC 374
Cr.A.No.1142/2015
dying declarations, in such a situation, the court has to examine the
same in the light of the various surrounding facts and
circumstances.
17. Similarly, in the matter of Kishan Lal v. State of Rajasthan8, the
Supreme Court held as under: -
"17. Examining these two dying declarations, we find
not only that they gave two conflicting versions but there
are inter se discrepancies in the depositions of the
witnesses given in support of the other dying declaration
dated 6-11-1976. Finally, in the dying declaration before
a Magistrate on which possibly more reliance could have
been placed the deceased did not name any of the
accused. Thus, we have no hesitation to hold that these
two dying declarations do not bring home the guilt of the
appellant. The High Court, therefore, erred in placing
reliance on them by erroneously evaluating them."
18. In the matter of Lella Srinivasa Rao v. State of A.P. 9 their Lordships
of the Supreme Court have considered the legality and acceptability
of two dying declarations and noticing the inconsistency between
the two dying declarations, their Lordships held that it is not safe to
act solely on the said declarations to convict the accused persons.
19. Further, in the matter of Amol Singh v. State of M.P.10, the Supreme
Court noticing inconsistencies between the multiple dying
declarations, interfered with the order of sentence and held as
under: -
"13. ... it is not the plurality of the dying declarations but
the reliability thereof that adds weight to the prosecution
case. If a dying declaration is found to be voluntary,
reliable and made in fit mental condition, it can be relied
upon without any corroboration [but] the statement
8 (2000) 1 SCC 310
9 (2004) 9 SCC 713
10 (2008) 5 SCC 468
Cr.A.No.1142/2015
should be consistent throughout. ... However, if some
inconsistencies are noticed between one dying
declaration and the other, the court has to examine the
nature of the inconsistencies, namely, whether they are
material or not [and] while scruitinizing the contents of
various dying declarations, in such a situation, the court
has to examine the same in the light of the various
surrounding facts and circumstances."
20. In the matter of Sharda v. State of Rajasthan11, the Supreme Court
while dealing with three dying declarations and noticing
inconsistencies between the dying declarations, set aside the
sentence ordered by the Sessions Judge as well as the High Court
and held as under: -
"25. Though a dying declaration is entitled and is still
recognized by law to be given greater weightage but it
has also to be kept in mind that the accused had no
chance of cross-examination. Such a right of cross-
examination is essential for eliciting the truth as an
obligation of oath. This is the reason, generally, the
court insists that the dying declaration should be such
which inspires full confidence of the court of its
correctness. The court has to be on guard that such
statement of the deceased was not as a result of either
tutoring, prompting or product of imagination. The court
must be further satisfied that deceased was in a fit state
of mind after a clear opportunity to observe and identify
the assailants. Once the court is satisfied that the
aforesaid requirement and also to the fact that
declaration was true and voluntary, undoubtedly, it can
base its conviction without any further corroboration."
21. Reverting to the facts of the case in light of the aforesaid principles
of law laid down by their Lordships of the Supreme Court, it is quite
vivid that the deceased has admittedly made two dying declarations
on 9-1-2013 and 15-1-2013 - Exs.P-8 & P-9, respectively. The trial
Court has relied upon the second dying declaration Ex.P-9 and
11 (2010) 2 SCC 85
Cr.A.No.1142/2015
convicted the appellants herein. It is the case of the prosecution
that on 9-1-2013, deceased Kavita suffered burn injuries and she
was admitted to the hospital where her dying declaration was
recorded vide Ex.P-8 before the Executive Magistrate - G.P.
Sharma (PW-4) and before recording dying declaration, Sharda
Banjare (PW-11) - Assistant Sub-Inspector vide Ex.P-18 sought
opinion of the doctor of the concerned hospital in which the
concerned doctor has certified deceased Kavita to be in fit state of
mind and accordingly, the Executive Magistrate recorded dying
declaration of deceased Kavita vide Ex.P-8 which states as under: -
vkt fnukad 09-01-2013 dks 10-00 cts eSa vius ifr dks dke ds fy, cksyh
rks Hku&Hku djus yxkA esjs ifr us dgk rqedks ;gka jguk gS jgks] ;k pys
tkvks] eSa cgqr ijs'kku gks xbZ Fkh oks rhu ekg ls esjs ifr dke ugha dj jgs
gSA lkl] llqj] nsoj lkFk esa jgrs gSaA eSa LVkso tyk jgh Fkh ftlls vkx
yxkA rhu o"kZ iwoZ 'kknh gqbZ gS cPps ugha gS ifjokj okys ls ijs'kku gksdj
LVkso ls tyh gwaA
22. A careful perusal of the aforesaid dying declaration would show that
the deceased did not implicate any one of the appellants herein and
simply stated that while she was igniting stove, she suffered burn
injuries and further stated that she had no issue and out of
frustration and harassment by family, she suffered burn injuries by
stove and she also put her signature in the dying declaration which
has been proved by G.P. Sharma (PW-4) - Nayab Tahsildar /
Executive Magistrate. Thereafter, it appears that Raju Kailash
Kuhikar (PW-8), who is brother of the deceased, resident of Nagpur
(Maharashtra), made an application in shape of complaint vide
Ex.P-11 on 11-1-2013 for re-recording the statement of his sister
deceased Kavita alleging that the dying declaration recorded on 9-
Cr.A.No.1142/2015
1-2013 is an outcome of pressure and inducement extended by the
three appellants herein and therefore again the statement of Kavita
be recorded which was acceded to by Assistant Sub-Inspector
Sharda Banjare (PW-11) who wrote a memo vide Ex.P-20 on the
ground that the brother of the decease had made request for re-
recording the dying declaration of the deceased and ultimately vide
Ex.P-9, dying declaration of the deceased was re-recorded again
on 15-1-2013 by Executive Magistrate G.P. Sharma (PW-4) who
had recorded her earlier statement on 9-1-2013. The second dying
declaration Ex.P-9 states as under: -
**'kiFk dFku fn% 15-01-2013
iz'u & uke D;k gS+\
mRrj & esjk uke dfork gS eSa ikoj gkml esa jgrh gwaA
iz'u & rqEgkjs lkFk dkSu&dkSu jgrs gSa\
mRrj & esjs lkFk lsjs lkl llwj vkSj esjk ifr jgrk gS] dqy pkj lnL;
jgrs gSA esjk nsoj fodkl Hkh lkFk esa jgrk gSA
iz'u & fnukad 09-01-2013 dks fdrus cts ?kVuk ?kVh\
mRrj & fnukad 09-01-2013 dks izkr% 10-00 cts esjs ifr us eq>s ej tk
djds cksyk esjh lkl js[kk] llqj lqHkk"k ,oa ifr jkds'k us feVVh rsy
Mkydj tyk fn;kA fnukad 09-01-2013 dks eSa vius dFku esa Mj ds dkj.k
ugha crk ikbZA fnukad 09-01-2013 dks ?kj esa jkds'k u'ks esa FkkA dke esa
ugha tkus ij eSa cksyh] rks jkds'k us rsy Mkydj tyk;kA lkl&llqj eq>s
idM+ fy;s FksA vkt eSa vius Lo;a ds fo'okl ls dFku dj jgh gwaA jlksbZ
?kj esa ty dj eSa lkeus dejs esa vkbZ] esjs lkl&llqj ,oa ifr gesa'kk ngst
ds fy, ijs'kku djrs FksA vius ek;ds ls iSlk yk] rc jkds'k dks dke ij
yxk;sxs ,oa ges'kk xkyh xykSp dj ijs'kku djrs FksA vius Lo;a ls dFku
dhA ftyk fpfdRlky; esa cka;s gkFk dk vaxwBk yxk;hA**
23. A careful perusal of the aforesaid dying declaration Ex.P-9 would
reveal that in the said dying declaration, the deceased has again
Cr.A.No.1142/2015
put her left hand thumb impression on the same and she had
explained that on 9-1-2013, all the three appellants herein -
mother-in-law, father-in-law and husband have set her ablaze by
pouring kerosene oil on her body and on 9-1-2013, she could not
state the same on account of fear and pressure, as they used to
harass her demanding dowry. Thereafter, she died on the next day
on 16-1-2013.
24. Applying the principles of law laid down by their Lordships of the
Supreme Court in the judgments noticed herein-above, it is quite
vivid that the first dying declaration recorded by the Tahsildar /
Executive Magistrate on 9-1-2013 was recorded in the first point of
time which was also certified by the doctor vide Ex.P-18, on the
request made by the Station House Officer, Police Station
Chhawni, to be in fit state of mind to make dying declaration and
accordingly, the Tahsildar / Executive Magistrate proceeded to
record the statement of the deceased in which she has clearly
stated that while igniting stove accidentally, she sustained burn
injuries and also said that she has no issue and therefore she is
unhappy with the family members, but she did not name any of the
appellants herein and had not stated that they have poured
kerosene oil on her body and set her ablaze. It is not the case of
the prosecution that any of the appellants was present there when
she gave dying declaration vide Ex.P-8 and they tutored her or
pressurized her to make such dying declaration, particularly when it
was recorded by the Executive Magistrate and the Executive
Magistrate has not been declared hostile and he has proved the
Cr.A.No.1142/2015
dying declaration Ex.P-8 as it is. The purpose of recording dying
declaration before the revenue officer / Executive Magistrate is that
correct and true version of the declarant is recorded free from any
bias-ness or undue influence or inducement by any external force
including who are interested and who are afraid that the declarant
may make declaration against them. As such, there is no good
reason to doubt the correctness of the dying declaration recorded
by the Executive Magistrate vide Ex.P-8. Thereafter, immediately
after few days, brother of the deceased - Raju Kailash Kuhikar
(PW-8) came and made an application for recording the dying
declaration afresh alleging intimidation and threat by the appellants
herein which was acceded to by the investigating officer and again
dying declaration was recorded in which the deceased has
implicated the present appellants alleging pouring kerosene oil by
them and setting her ablaze. The second dying declaration Ex.P-9
was not certified by the doctor that deceased Kavita was in fit state
of mind when the dying declaration was recorded and immediately
on the next day, after the second dying declaration was recorded
i.e. on 16-1-2013, she succumbed to death.
25. Smt. Sakuntala (PW-2), who is neighbour of the deceased has
been examined on behalf of the prosecution and she has not been
declared hostile. She has clearly stated that deceased Kavita died
on account of burn by stove. She has further stated that Kavita had
stated to the police that she died by burning by stove. In paragraph
3 of her cross-examination, she has clearly stated that she has
given statement to the police that Kavita died instantaneously while
Cr.A.No.1142/2015
igniting the stove. Not only this, Laxmi Kailash Kuhikar (PW-7) -
mother of the deceased, in her statement before the Court, in
paragraph 13, has clearly stated that her daughter Kavita's dying
declaration vide Ex.P-8 was recorded by the Naib Tahsildar /
Executive Magistrate - G.P. Sharma (PW-4) in her presence and
her son Raju Kailash Kuhikar (PW-8)'s presence and when the
statement vide Ex.P-9 i.e. the second dying declaration was
recorded, Smt. Sakuntala (PW-2) and she herself (PW-7) were
present.
26. As such, in view of the statement of Laxmi Kailash Kuhikar (PW-7)
- mother of the deceased, that she herself and her son Raju
Kailash Kuhikar (PW-8), both, were present when the first dying
declaration of Kavita Ex.P-8 was recorded on 9-1-2013, the
possibility of any threat, inducement or pressure while recording the
statement vide Ex.P-8, is absolutely ruled out and it is safely held
that after recording of first dying declaration, Raju Kailash Kuhikar
(PW-8) tutored his sister deceased Kavita and made application
vide Ex.P-11 to the Station House Officer, Police Station Chhawni,
Bhilai, that his sister has not given correct version on account of
inducement, fear and pressure and therefore her statement be
again recorded, which was accepted and second dying declaration
was recorded on 15-1-2013 without there being any certificate by
the doctor that she was in fit state of mind to give statement and
thus, the second dying declaration was an outcome of tutoring and
understanding given by Raju Kailash Kuhikar (PW-8) to implicate
the appellants herein which makes the second dying declaration
Cr.A.No.1142/2015
suspicious and unacceptable on the face of record, as their
accusation is that the first dying declaration made on 9-1-2013 vide
Ex.P-8 at Durg Hospital is on account of pressure and inducement
given by the appellants in view of the statement of Laxmi Kailash
Kuhikar (PW-7) before the Court in paragraph 13. More
particularly, Smt. Sakuntala (PW-2), who is neighbour of the
deceased, has clearly stated that the deceased was her neighbour
and she has clearly stated that accidentally while igniting stove, the
deceased (Kavita) sustained burn injuries and she had also given
statement to the police to that effect. Smt. Sakuntala (PW-2) has
not been declared hostile.
27. In view of the aforesaid analysis, we are of the considered opinion
that the first dying declaration Ex.P-8 is true and voluntary
statement of the deceased in which she has clearly stated to have
suffered burn injuries while igniting stove which may be said to be
accidental burn she suffered and ultimately, the deceased
succumbed to death, and the second dying declaration is an
outcome of tutoring and understanding given by Laxmi Kailash
Kuhikar (PW-7) & Raju Kailash Kuhikar (PW-8) which is shaky and
unacceptable. As such, we hereby accept the dying declaration
Ex.P-8 in which the deceased has stated that she died on account
of accidental burn injuries while igniting stove. It is held
accordingly. Accordingly, conviction and sentences of the
appellants under Section 302 read with Section 34 of the IPC are
not sustainable under the law.
28. The appellants have also been convicted for offences under
Cr.A.No.1142/2015
Sections 498A read with Section 34 and 304B read with Section 34
of the IPC.
29. In order to consider as to whether, conviction of the appellants for
the aforesaid offences would be justified or not, it would be
appropriate to refer the statement of mother of the deceased Laxmi
Kailash Kuhikar (PW-7). Though in the examination-in-chief, she
has stated that after marriage, her daughter's husband Rakesh &
others used to treat her daughter with cruelty and always compel
her to bring money, but in the cross-examination, paragraph 10,
she has clearly stated that marriage of her daughter was performed
as a group marriage and further admitted that before marriage,
nothing was settled as dowry and since her husband had already
left her, she used to maintain her children anyhow by cleaning
utensils. She has also admitted in paragraph 18 of her evidence
that at the time of marriage, she has not given any household
articles to her daughter and son-in-law and in paragraph 19, she
has admitted that since her son-in-law Rakesh is not involved in
any work, therefore they used to quarrel each other and that is the
reason for the incident in question. Similarly, brother of the
deceased Raju Kailash Kuhikar, who has been examined as PW-8,
has also admitted the same fact that marriage of the deceased and
accused / appellant No.1 Rakesh was performed in a group
marriage.
30. Statements of Laxmi Kailash Kuhikar (PW-7) & Raju Kailash
Kuhikar (PW-8) would reveal that main reason for the dispute
between accused / appellant No.1 and the deceased was appellant
Cr.A.No.1142/2015
No.1 is not in job and he has no source of income, therefore,
quarrel is said to have taken place between them as per the
statement of Laxmi Kailash Kuhikar (PW-7) - mother of the
deceased. Except the self-serving statements of Laxmi Kailash
Kuhikar (PW-7) & Raju Kailash Kuhikar (PW-8), there is no
evidence of demand of dowry. Therefore, conviction of the
appellants for offence under Section 304B read with Section 34 of
the IPC is not sustainable under the law.
31. It is appropriate to mention here that the learned trial Court has
convicted the appellants for offence under Section 302 as well as
304B of the IPC in addition to Section 498A of the IPC. For those
who are direct participants in the commission of offence of death
there are already provisions incorporated in Sections 300, 302 and
304 of the IPC and once the death is proved to be homicidal in
nature and the accused persons are authors of the crime, they can
be convicted under Section 302 of the IPC or in case of culpable
homicide not amounting to murder, they can be convicted under
Section 304B of the IPC. The provisions contained in Section 304B
of the IPC and Section 113 of the Evidence Act were incorporated
on the anvil of the Dowry Prohibition (Amendment) Act, 1984, the
main object of which is to curb the evil of dowry in the society and
to make it severely punitive in nature and not to extricate husbands
or their relatives from the clutches of Section 302 of the IPC, if they
directly cause death. (See Muthu Kutty and another v. State by
Inspector of Police, Tamil Nadu12.)
12 AIR 2005 SC 1473
Cr.A.No.1142/2015
32. In that view of the matter, conviction of the appellants for offence
under Section 302 of the IPC and also for offence under Section
304B of the IPC (for both the offences) is totally illegal. However,
Sections 498A & 304B of the IPC are distinct and cruelty however
is common ingredient of both offences, a person charged and
acquitted under Section 304B can be convicted under Section 498A
without that charge being there, if such a case is made out (see
Balwant Singh and others v. State of H.P. 13, Gopal v. State of
Rajasthan14).
33. Sections 304B & 498A of the IPC cannot be held to be mutually
inclusive. These provisions deal with two distinct offences. It is
true that cruelty is a common essential to both the Sections and
that has to be proved. (See Noorjahan v. State15.)
34. Sections 304B and 498A of the IPC are not mutually exclusive.
They deal with different and distinct offences. In both the sections,
"cruelty" is a common element. Under Section 498A, however,
cruelty by itself amounts to an offence and is punishable. Under
Section 304B, it is the dowry death that is punishable and such
death must have occurred within seven years of the marriage. No
such period is mentioned in Section 498A. Moreover, a person
charged and acquitted under Section 304B can be convicted under
Section 498A without a specific charge being there, if such a case
is made out. (See Arun Garg v. State of Punjab and another16.)
35. In that view of the matter, conviction of the appellants herein for
13 AIR 2009 SC (Supp) 1129
14 AIR 2009 SC 1928
15 AIR 2008 SC 2131
16 (2004) 8 SCC 251
Cr.A.No.1142/2015
offence under Section 498A of the IPC is legally permissible and is
well merited.
36. In view of the aforesaid analysis, we are unable to sustain
conviction and sentences imposed upon the appellants under
Sections 302 read with Section 34 & 304B read with Section 34 of
the IPC. It is accordingly set aside. The appellants stand acquitted
of the charges framed against them for the offences punishable
under Sections 302 read with Section 34 & 304B read with Section
34 of the IPC. However, their conviction and sentences under
Section 498A read with Section 34 of the IPC are hereby affirmed.
The appellants are in jail. We direct that they shall be forthwith set
at liberty, unless their custody is required in connection with any
other offence.
37. The appeal is allowed in part to the extent indicated herein-above.
Sd/- Sd/-
(Sanjay K. Agrawal) (Rakesh Mohan Pandey)
Judge Judge
Soma
