Chattisgarh High Court
Dev Lal Sonwani @ Dukhiram vs State Of Chhattisgarh on 11 November, 2022
Cr.A.No.108/2018
Page 1 of 23
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Appeal No.108 of 2018
{Arising out of judgment dated 8-1-2018 in Sessions Trial No.H-41/2014
of the Additional Judge to the Court of Additional Sessions Judge,
Mungeli}
Judgment reserved on: 20-10-2022
Judgment delivered on: 11-11-2022
Dev Lal Sonwani @ Dukhiram, S/o Dayali, Aged about 39 years, R/o
Village Rehuta, Police Station City Kotwali, Mungeli, Distt. Mungeli (C.G.)
(In Jail)
----- Appellant
Versus
State of Chhattisgarh, Through Police Station City Kotwali, Mungeli,
District Mungeli (C.G.)
----- Respondent
--------------------------------------------------------------------------------------------------
For Appellant: Mr. Dheerendra Pandey, Advocate.
For Respondent/State: Mr. Sudeep Verma, Deputy Govt. Advocate.
--------------------------------------------------------------------------------------------------
Hon'ble Shri Sanjay K. Agrawal and
Hon'ble Shri Deepak Kumar Tiwari, JJ.
C.A.V. 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 ₹ 500/-, in default, to further undergo rigorous
imprisonment for one year.
Cr.A.No.108/2018
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,
Cr.A.No.108/2018
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.
Cr.A.No.108/2018
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 seized vide
Ex.P-3.
3. Statements of the witnesses were recorded under Section 161 of
the CrPC and after due investigation, the appellant and other
accused were charge-sheeted before the jurisdictional criminal
court from where the case was committed to the Court of Additional
Sessions Judge, Mungeli for hearing and disposal in accordance
with law.
4. The prosecution in order to bring home the offence, examined as
many as 17 witnesses PW-1 to PW-17 in support of its case and
exhibited 28 documents Exs.P-1 to P-28C. Defence has not
examined any witness in its support and not exhibited any
document. Statements of the accused persons were recorded
under Section 313 of the CrPC in which they abjured the guilt and
pleaded innocence and false implication and claimed to be tried.
5. The trial Court after completion of trial and upon appreciation of oral
and documentary evidence on record, by its impugned judgment,
convicted and sentenced the appellant herein as mentioned in the
opening paragraph of this judgment finding the dying declaration
Ex.P-20 of deceased Chande Das proved and furthermore, on the
basis of the statement of Chande Das recorded on 28-5-2014
treating the same as statement under Section 32(1) of the Evidence
Act, which has been proved by Salik Ram Rajput (PW-17);
however, acquitted co-accused Dayali (A-2) - father of the
Cr.A.No.108/2018
appellant herein, finding no evidence against him, which is sought
to be challenged in this criminal appeal preferred under Section
374(2) of the CrPC by the appellant herein.
6. Mr. Dheerendra Pandey, learned counsel appearing for the
appellant, would submit as under: -
1. Even if the dying declaration Ex.P-20 is taken as it is, it would
not implicate the appellant herein, as the deceased had not
named the appellant herein since he has used the word ' sala'
(brother-in-law), whereas, as per the statement of Umed Das
(PW-9), the appellant has two more brothers and the
deceased has not named the appellant herein only and
therefore the finding recorded by the trial Court convicting the
appellant on the basis of dying declaration is liable to be
discarded.
2. The statement given by deceased Chande Das on 28-5-2014
though has become dying declaration on his death on 3-6-
2014 in view of Section 162(2) of the CrPC & under Section
32(1) of the Evidence Act, but the statement dated 28-5-2014
given by deceased Chande Das does not relate to cause of
death under Section 32(1) of the Evidence Act, therefore, it is
not admissible in evidence. Learned counsel would
alternatively submit that even otherwise, the statement of the
deceased dated 28-5-2014 is with regard to involvement of
brother-in-law of the deceased and the appellant being three
brothers as per the statement of Umed Das (PW-9), the
statement with regard to involvement at the most is attributed
Cr.A.No.108/2018
to brother-in-law of the deceased and has no remote
connection or reference to the cause of death under Section
32(1) of the Evidence Act and would not be admissible under
Section 32 of the Evidence Act. Therefore, the impugned
judgment of conviction and order of sentence are liable to be
set aside.
7. Mr. Sudeep Verma, learned State counsel, would submit that the
dying declaration Ex.P-20 and the statement of deceased Chande
Das recorded on 28-5-2014 have rightly been considered by the
trial Court as dying declaration under Section 32(1) of the Evidence
Act in view of the provisions contained in Section 162(2) of the
CrPC and therefore the impugned judgment is well merited and as
such, the appeal deserves to be dismissed as it has no force of law.
8. We have heard learned counsel for the parties and considered their
rival submissions made herein-above and also went through the
record with utmost circumspection.
9. The trial Court has held the death of the deceased to be homicidal
in nature relying upon the statements of Dr. Amit Pal (PW-7), who
has primarily treated the deceased, and Dr. Prem Chand Banerjee
(PW-12), who had performed postmortem over the body of the
deceased vide postmortem report Ex.P-23, and held that cause of
death was cardio respiratory failure resulting from infection at burn
area due to deep burn. The said finding that death of the deceased
was homicidal in nature is a finding of fact based on the evidence
available on record, which is neither perverse nor contrary to the
record and we hereby affirm the said finding.
Cr.A.No.108/2018
10. The trial Court has convicted the appellant for offence under
Section 302 of the IPC by recording following two findings: -
1. Dying declaration (Ex.P-20) dated 29-5-2014 recorded and
proved by Dr. Shashi Kant Sahu (PW-10) inspires confidence.
2. Secondly, statement under Section 161 of the CrPC of
deceased Chande Das recorded and proved by Head
Constable Salik Ram Rajput (PW-17) on 28-5-2014 has
become statement under Section 32(1) of the Evidence Act in
light of Section 162(2) of the CrPC and it finds support from
the confessional statement of co-accused Dayali (now
acquitted) vide Ex.P-2.
11. Now, we will consider as to whether the two dying declarations
relied upon by the trial Court are in accordance with law to sustain
the conviction recorded by the trial Court.
Dying declaration recorded vide Ex.P-20 by Dr. Shashi Kant Sahu
(PW-10)
12. Dying declaration Ex.P-20 was recorded on 29-5-2014 by Dr.
Shashi Kant Sahu (PW-10) which states as under: -
Dying Declaration
Date : 29/05/2014
Start Time 12:30 pm
1- rqEgkjk uke D;k gS %& pans nkl
2- rqEgkjk mez fdruk gS %& 37 o"kZ"
4- rqEgkjk firk dk uke D;k gS %& Lo- lqerk nkl
5- rqe jgrs dgka gks %& xzke & pkdkisUMªk
6- rqEgkjk 'kknh dc gqbZ gS %& 12&13 lky gks x;k"""""""
7- rqe dSls ty x, %& eSa dy 'kke dks llwjky jsgwVk x;k
FkkA esjs lkyk us esjs Åij feV~Vh rsy
Cr.A.No.108/2018
Mkydj vkx yxk nhA
8- rwEgs igys cpkus dkSu vk;k %& eq>s irk ugha eS lM+d esa b/kj m/kj
Hkkx jgk FkkA
9- rqEgkjk fdlh ds lkFk >xM+k rks ugha gqvk %& lkyk ds lkFk gqvk
FkkA
10- rqEgsa dqN vkSj dguk %& D;k eSa cksywaA
11- rqEgsa D;ksa tyk;k %& esjs iRuh viuh ekbZdk esa jgrh gS eSa ysus dks
x;k Fkk ifRu vkus dks euk dj fn;k rks eSus
viuk tsoj xguk dks exk rks esjs lkys us
feV~Vh rsy Mkydj vkx yxk nh A
Complite time 12:40 pm
13. A careful perusal of the aforesaid dying declaration would show that
the deceased had only stated while answering question No.7 that
his sala (brother-in-law) has poured kerosene oil over his body and
set him on fire. While answering question Nos.9, 10 & 11 also, he
has referred the word sala (brother-in-law) who has poured
kerosene oil on his body and set him on fire.
14. Umed Das has been examined as prosecution witness No.9.
Though he has turned hostile, but in cross-examination, he has
clearly stated that Devlal are three brothers and his uncle has two
sons. As such, deceased Chande Das had five brothers-in-law,
three sons of Dayali including the appellant herein and two cousins.
Therefore, it is established on record that the appellant has two
brothers and Sunita had three brothers including the appellant
herein being brother-in-law / sala of deceased Chande Das.
15. Dr. Shashi Kant Sahu (PW-10) who has recorded dying declaration
of the deceased on 29-5-2014 has been examined. He has clearly
stated in his statement before the Court that during recording of
dying declaration, the deceased had used the word sala, but he did
not spell out the name of his sala / brother-in-law and did not
Cr.A.No.108/2018
specifically name any brother-in-law and did not elaborate how
many brothers-in-law he had.
16. 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"
17. 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,
1 (1984) 4 SCC 116
Cr.A.No.108/2018
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 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
Cr.A.No.108/2018
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."
18. Recently, 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
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.
2 (2020) 11 SCC 489
Cr.A.No.108/2018
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."
19. Reverting to the facts of the case in light of the principles of law laid
down by their Lordships of the Supreme Court in Sharad
Birdhichand Sarda (supra) and Purshottam Chopra (supra), it has
not been stated on behalf of the appellant that the deceased was
not in fit state of mind or Ex.P-20 is suspicious document and he
was not physically fit to give dying declaration, but the only
submission that has been raised on behalf of the appellant is that it
does not implicate the appellant herein, as brother-in-law of the
deceased are three in number including the appellant herein and
the word 'sala' (brother-in-law) has been used in the dying
declaration and therefore taking the dying declaration as it is,
benefit of doubt would go to the appellant.
Cr.A.No.108/2018
20. True it is that in the entire dying declaration Ex.P-20, the deceased
had only stated that his brother-in-law has poured kerosene oil on
his body and set him on fire, it has been stated twice while
answering question Nos.7 & 11 also and it has also been
established by the prosecution witness No.9 Umed Das who is also
related to deceased Chande Das. Umed Das (PW-9) has clearly
stated that the appellant has two more brothers and his uncle had
two sons and as such, deceased Chande Das had five brothers-in-
law, three are sons of Dayali (co-accused) and two from brother of
Dayali. Not only this, Dr. Shashi Kant Sahu, who has recorded
dying declaration Ex.P-20, has been examined as PW-10 and on
examination and cross-examination, he has clearly stated that the
deceased did not name any brother-in-law in his dying declaration
and he (this witness PW-10) did not make any endeavour to ask
from the deceased as to which of his brothers-in-law have caused
burn injuries to him, which was very much necessary to implicate
the appellant for offence under Section 302 of the IPC taking Ex.P-
20 as dying declaration.
21. In order to convict a person for offence under Section 302 of the
IPC, there must be clear evidence on record that he is the
perpetrator and author of the crime. Merely stating that his brother-
in-law has poured kerosene oil on his body and set him on fire,
particularly when there are three brothers-in-law of the deceased,
the appellant cannot be convicted assuming that he is the only
brother-in-law who has poured kerosene oil on the body of the
deceased and set him on fire. Suspicion, however grave it may be
Cr.A.No.108/2018
cannot take the place of proof.
22. It is the cardinal principle of criminal jurisprudence that " it is better
that ten guilty persons escape, than that one innocent suffer"3 relied
upon by the Supreme Court in the matter of Bijender alias Mandar
v. State of Haryana4 in which their Lordships of the Supreme Court
have also held that the doctrine of extending benefit of doubt to an
accused, notwithstanding the proof of a strong suspicion, holds its
fort on the premise that "the acquittal of a guilty person constitutes
a miscarriage of justice just as much as the conviction of the
innocent".
23. Therefore, on the principle laid down by the Supreme Court in
Bijender alias Mandar (supra), the appellant is entitled to benefit of
doubt, as it is not proved beyond doubt by the prosecution that it is
the appellant who poured kerosene oil on the body of the deceased
and set him to fire. As such, the prosecution has miserably failed to
prove the dying declaration beyond reasonable doubt and it is held
accordingly.
Statement of the deceased recorded under Section 161 of the
CrPC
24. Now, the next incriminating evidence that has been found proved by
the trial Court is statement of the deceased recorded under Section
161 of the CrPC, which has become dying declaration of the
deceased after his death.
25. Head Constable Salik Ram Rajput (PW-17) recorded following
3 W. Blackstone, Commentaries on the Laws of England, Book IV, c. 27 (1897), p.
358. Ed.: see R. v. John Paul Lepage, 1995 SCC OnLine Can SC 19.
4 (2022) 1 SCC 92
Cr.A.No.108/2018
statement of the deceased under Section 161 of the CrPC on 28-5-
2014, which is a part of the original record, as it is not exhibited by
the trial Court and the deceased died on 3-6-2014: -
--- vkSj esjs llqj n;kyh ,oa lkyk nsoyky mQZ nq[khjke IykfLVd ds xsyu ls
feV~Vh rsy fudky dj esjs Åij es <dsy fn;kA rc eS Hkkx jgk FkkA ihNs
ls ekfpl yxk fn;k dkSu yxk;k eS ns[k ugha ik;k Hkkxrs&Hkkxrs eS vius xkao
rjQ tk jgk Fkk fd js'ke eq>s Qksu fd;k rks eS mls Qksu ls crk;k fpjgqyk
ds jksM es gwa] 108 ,Ecqysal ds Hkstus ds fy, cksyk Fkk rc 108 ,Ecwysal x;k
ftlesa esjh HkkHkh jkts'ojh] eUuw ds lkFk vLirky eqxa syh vk;k gwaA esjk 'kjhj
ds ihB] isV] gkFk nksuks] psgjk] xyk] cky] ty x;k gSA esjs llqj vkSj lkyk
yksx eq>s ekjus ds fy;s esjs Åij feV~Vh rsy Mkydj vkx yxk;s gSA
26. Now, the question is, whether the trial Court is justified in taking the
statement of the deceased injured recorded under Section 161 of
the CrPC as dying declaration under Section 32(1) of the Evidence
Act admitting the same into evidence and convicting the appellant
on the basis?
27. Section 161 of the CrPC speaks about examination of witnesses by
police and Section 161(3) states as under: -
"161. Examination of witnesses by police.--xxx
(3) The police officer may reduce into writing any
statement made to him in the course of an examination
under this section; and if he does so, he shall make a
separate and true record of the statement of each such
person whose statement he records:
xxx xxx xxx"
28. Section 162 of the CrPC provides that a statement recorded by the
police officer during investigation is inadmissible in evidence and
the proper procedure to confront the witness with the contradictions
when they are examined and then ask the Investigating Officer
regarding these contradictions. However, Section 162(2) is an
exception to Section 162(1) of the CrPC. Section 162(2) of the
Cr.A.No.108/2018
CrPC states as under: -
"162. Statements to police not to be signed: Use of
statements in evidence.--xxx xxx xxx
(2) Nothing in this section shall be deemed to apply
to any statement falling within the provisions of clause (1)
of Section 32 of the Indian Evidence Act, 1872 (1 of
1872), or to affect the provisions of Section 27 of that Act.
Explanation.--An omission to state a fact or
circumstance in the statement referred to in sub-section
(1) may amount to contradiction if the same appears to
be significant and otherwise relevant having regard to the
context in which such omission occurs and whether any
omission amounts to a contradiction in the particular
context shall be a question of fact."
29. As such, sub-section (2) of Section 162 of the CrPC incorporates a
clear exception to what has been laid down in sub-section (1). The
statement recorded by police under Section 161, falling within the
provisions of clause (1) of Section 32 of the Evidence Act, thus, is
clearly relevant and admissible in evidence. (See Pradeep Bisoi
alias Ranjit Bisoi v. State of Odisha5.)
30. Section 32(1) of the Evidence Act relates to the statement made by
a person before his death. Two categories of statements are made
admissible in evidence and further made them as substantive
evidence. They are: (1) his statement as to the cause of his death;
(2) his statement as to any of the circumstances of the transaction
which resulted in his death.
31. The Supreme Court in the matter of Patel Hiralal Joitaram v. State
of Gujarat6 considering its earlier decisions on dying declaration
held that under Section 32(1) of the Evidence Act, statement as to
5 AIR 2018 SC 4787
6 (2002) 1 SCC 22
Cr.A.No.108/2018
the cause of death and statement as to any of the circumstances of
the transaction which resulted in death are admissible in evidence
and observed in paragraph 29 as under: -
"29. The above provision relates to the statement made
by a person before his death. Two categories of
statements are made admissible in evidence and further
made them as substantive evidence. They are: (1) his
statement as to the cause of his death; (2) his statement
as to any of the circumstances of the transaction which
resulted in his death. The second category can envelop
a far wider amplitude than the first category. The words
"statement as to any of the circumstances" are by
themselves capable of expanding the width and contours
of the scope of admissibility. When the word
"circumstances" is linked to "transaction which resulted in
his death" the sub-section casts the net in a very wide
dimension. Anything which has a nexus with his death,
proximate or distant, direct or indirect, can also fall within
the purview of the sub-section. As the possibility of
getting the maker of the statement in flesh and blood has
been closed once and for all the endeavour should be
how to include the statement of a dead person within the
sweep of the sub-section and not how to exclude it
therefrom. Admissibility is the first step and once it is
admitted the court has to consider how far it is reliable.
Once that test of reliability is found positive the court has
to consider the utility of that statement in the particular
case."
32. In the matter of Moti Singh and another v. State of Utter Pradesh 7,
their Lordships of the Supreme Court have held that clause (1) of
Section 32 of the Evidence Act makes a statement of a person who
has died relevant only when that 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. In that case, their
Lordships further held that when deceased therein Gaya Charan is
7 AIR 1964 SC 900
Cr.A.No.108/2018
not proved to have died as a result of the injuries received in the
incident, his statement cannot be said to be the statement as to the
cause of his death or as to any of the circumstances of the
transaction which resulted in his death.
33. Furthermore, in the matter of Vinay D. Nagar v. State of Rajasthan8,
it has been held that bar of Section 162 of the CrPC of proving the
statement recorded by the police officer of any person during
investigation however shall not apply to any statement falling within
the provision of clause (1) of Section 32 of the Evidence Act, nor
shall it affect Section 27 of the Evidence Act and observed in
paragraph 24 as under: -
"15. We have analysed the statement of the deceased
Kalu made to the police under Section 161 CrPC. We do
not find that the statement of the deceased was in regard
to the cause of his death, or as to any of the
circumstances of the transaction which resulted in his
death. The statement is in regard to the accused's
involvement in the abduction of a boy and has no remote
connection or reference to the death of the deceased
and thus would not be admissible under Section 32 of
the Evidence Act. The statement recorded by the police
although could be proved as there would not be any bar
under Section 162 CrPC for proof of such statement, but
it would not be admissible under Section 32 of the
Evidence Act, and thus it could not have been relied
upon by the prosecution to prove the motive for
commission of the crime by the appellant-accused."
34. Similarly, in the matter of Sri Bhagwan v. State of Uttar Pradesh 9, it
has been held that in exceptional circumstances, statement under
Section 161 of the CrPC can be treated as dying declaration falling
within the four corners of Section 32 of the Evidence Act, and
8 (2008) 5 SCC 597
9 (2013) 12 SCC 137
Cr.A.No.108/2018
observed in paragraph 24 as under: -
"24. As far as the implication of Section 162(2) CrPC is
concerned, as a proposition of law, unlike the excepted
circumstances under which Section 161 CrPC statement
could be relied upon, as rightly contended by the learned
senior counsel for the respondent, once the said
statement though recorded under Section 161 CrPC
assumes the character of dying declaration falling within
the four corners of Section 32(1) of the Evidence Act,
then whatever credence that would apply to a declaration
governed by Section 32(1) should automatically deemed
to apply in all force to such a statement though was once
recorded under Section 161 CrPC. The above statement
of law would result in a position that a purported
recorded statement under Section 161 of a victim having
regard to the subsequent event of the death of the
person making the statement who was a victim would
enable the prosecuting authority to rely upon the said
statement having regard to the nature and content of the
said statement as one of dying declaration as deeming it
and falling under Section 32(1) of Evidence Act and
thereby commend all the credence that would be
applicable to a dying declaration recorded and claimed
as such."
35. In the matter of Laxmi (Smt) v. Om Prakash and others10, the
Supreme Court relying upon its earlier decisions in the matters of
Dalip Singh v. State of Punjab11 and Munnu Raja v. State of M.P. 12,
has held that a dying declaration made to a police officer is
admissible in evidence, however, the practice of dying declaration
being recorded by an investigating officer has been discouraged as
the investigating officers are naturally interested in the success of
the investigation, and observed in paragraph 30 as under: -
"30. A dying declaration made to a police officer is
admissible in evidence, however, the practice of dying
declaration being recorded by an investigating officer has
10 (2001) 6 SCC 118
11 (1979) 4 SCC 332
12 (1976) 3 SCC 104
Cr.A.No.108/2018
been discouraged and this Court has urged the
investigating officers to avail the services of a Magistrate
for recording dying declaration if it was possible to do so
and the only exception is when the deceased was in
such a precarious condition that there was no other
alternative left except the statement being recorded by
the investigating officer or the police officer, later on
relied on as dying declaration. In Munnu Raja v. State of
M.P.9 this Court observed: (SCC p.108, para 11)
"Investigating officers are naturally interested
in the success of the investigation and the practice
of the investigating officer himself recording a dying
declaration during the course of an investigation
ought not to be encouraged."
The dying declaration recorded by the investigating
officer in the presence of the doctor and some of the
friends and relations of the deceased was excluded from
consideration as the failure to requisition the services of
a Magistrate for recording the dying declaration was not
explained. In Dalip Singh v. State of Punjab8 this Court
has permitted dying declaration recorded by investigating
officer being admitted in evidence and considered on
proof "that better and more reliable methods of recording
dying declaration of injured person" were not feasible for
want of time or facility available. It was held that a dying
declaration in a murder case, though could not be
rejected on the ground that it was recorded by a police
officer as the deceased was in a critical condition and no
other person could be available in the village to record
the dying declaration yet the dying declaration was left
out of consideration as it contained a statement which
was a bit doubtful."
36. Reverting to the facts of the case in light of the aforesaid principles
of law laid down by their Lordships of the Supreme Court qua the
dying declaration under Section 32(1) of the Evidence Act,
particularly when statement under Section 161 of the CrPC has to
be treated as dying declaration and in view of Section 162(2) of the
CPC it can be treated as dying declaration when statement under
Section 161 of the CrPC relates to cause of death and furthermore,
Cr.A.No.108/2018
that it is admissible in evidence in view of Section 162(2) of the
CrPC, but the prosecution has to satisfy that it has been recorded
in accordance with law. In the instant case, the statement of
deceased Chande Das, who died on 3-6-2014, recorded on 28-5-
2014, though not exhibited, would show that it only states that the
appellant herein and his father Dayali had poured kerosene oil on
the body of the deceased and set him on fire and furthermore, in
last part of the statement of the deceased recorded under Section
161 of the CrPC, 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 the deceased was pointing out, as the deceased had three
brothers-in-law. As such, we do not find that the statement of the
deceased under Section 161 of the CrPC recorded on 28-5-2014,
which has been treated by the learned trial Court as statement
under Section 32(1) of the Evidence Act relating to the cause of his
death or as to any of the circumstances of the transaction which
resulted in his death. At the most, the statement of the deceased
recorded on 28-5-2014 is with regard to the involvement of his
unnamed brother-in-law and his father-in-law, who has been
acquitted, and the statement dated 28-5-2014 has no connection or
reference to his death. Even it has been recorded by the police
officer (Head Constable) on 28-5-2014 and furthermore, it has not
been tendered into evidence by the prosecution except the self-
serving statement of Salik Ram Rajput (PW-17) and therefore
though the statement recorded by the police could be proved to be
dying declaration in view of the exception carved out under Section
Cr.A.No.108/2018
162(2) of the CrPC, but it would not be safe to convict the appellant
on the basis of Section 161 statement dated 28-5-2014 treated as
dying declaration after the death of Chande Das, more particularly
for the reason that in question No.66 put to the accused under
Section 313 of the CrPC, it has only been asked that Chande Das
had given statement on 28-5-2014, but nothing further has been
asked which was very much necessary to use the said document
against the appellant.
37. The trial Court has also taken the aid of Ex.P-2 - confessional
statement of the co-accused, to convict the appellant. In the matter
of Haricharan Kurmi & Jogia Hajam v. State of Bihar13 as well as
Ram Chandra and another v. State of Uttar Pradesh14 it has been
held by their Lordships of the Supreme Court that confessional
statement of a co-accused can only be taken into consideration but
it was not in itself a substantive evidence. The aforesaid two
decisions have been followed with approval in light of Section 30 of
the Evidence Act by the Supreme Court in the matter of
Subramanya v. State of Karnataka15. In that view of the matter,
reliance placed upon the memorandum of the co-accused, who has
now been acquitted, is of no help to the prosecution.
38. In view of the aforesaid analysis, we are of the opinion that the
conviction recorded by the trial Court on the basis of dying
declaration Ex.P-20 cannot be sustained and furthermore,
statement of the deceased recorded under Section 161 of the CrPC
13 AIR 1964 SC 1184
14 AIR 1957 SC 381
15 Criminal Appeal No.242 of 2022, decided on 13-10-2022
Cr.A.No.108/2018
on 28-5-2014 treated as dying declaration under Section 32(1) of
the Evidence Act does not relate to cause of death of the deceased,
particularly when the statement has not been tendered into
evidence nor it has been put to the accused under Section 313 of
the CrPC specifically except question No.66 and therefore that
piece of evidence cannot be used against the appellant. As such,
conviction and sentences imposed upon the appellant under
Section 302 of the IPC are liable to be quashed and are hereby
quashed. The appellant is acquitted of the said charge. He is in
jail. He be released forthwith if not required to be detained under
any other process of law.
39. The appeal is allowed accordingly.
40. While parting with record, we express our gratitude to Mr. D.K.
Gwalre, Advocate, who in short notice submitted a written note
which helped us in deciding this appeal.
Sd/- Sd/-
(Sanjay K. Agrawal) (Deepak Kumar Tiwari)
Judge Judge
Soma
