Chattisgarh High Court
Gudda @ Ravi Shankar Pandey vs State Of Chhattisgarh on 13 October, 2022
1
AFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Criminal Appeal No. 148 of 2012
Gudda @ Ravishankar Panday S/o Tulsi Ram Panday, Aged
about 22 years, R/o Village Tengni, Police Station Patna,
Distt. Koriya, Chhattisgarh.
---Appellant
Versus
State of Chhattisgarh through District Magistrate, Distt.
Koriya, Chhattisgarh.
---Respondent
For Appellant :- Mr. Mahendra Dubey, Advocate
For State :- Mr. Sudeep Verma, Dy. G.A. and
Mr. Soumya Rai, P.L.
Hon'ble Shri Justice Sanjay K. Agrawal
Hon'ble Shri Justice Deepak Kumar Tiwari
Judgment on Board
13/10/2022
Sanjay K. Agrawal, J.
1. This criminal appeal under Section 374(2) of CrPC has been
preferred by the appellant herein assailing the impugned
judgment dated 05/01/2012 (Annexure A/1) passed by the
Sessios Judge Koriya (Baikunthpur) Distt. Koriya in
Sessions Trial No. 62/2007 whereby he has been convicted
for offence punishable under Section 302 of the IPC and
sentenced to undergo imprisonment for life with fine of Rs.
1000/- and in default of payment of fine additional R.I. for
three months.
2. Case of the prosecution, in brief, is that on 08/04/2022 at
about 05:30 PM, the appellant herein, with the intention of
causing death of his wife Smt. Prabha Pandey, poured
kerosene oil over her and set her on fire due to which she
received 90% burn injuries and ultimately, succumbed to
death on 15/04/2022.
3. Further case of the prosecution is that marriage of deceased
Smt. Prabha Pandey was solemnized with the appellant
Gudda @ Ravishankar Pandey on 29/04/2004 at Ramgarh.
After marriage, the deceased used to have chest pain and
for treatment she used to visit her parental home frequently.
On 08/04/2005, the deceased had suffered 90% burn
injuries and she was escorted to Baikunthpur Hospital.
After being informed by the Hospital, Rampratap Sahu (Ex.
P/43), working as A.S.I. at Police Station Baikunthpur,
wrote a letter (Ex. P/39) to the Assistant Surgeon,
Community Health Center, Baikunthpur for conducting
medical examination of the deceased and also wrote a letter
to the Executive Magistrate for recording dying declaration
of the deceased. MLC was conducted by Dr. Rameshwar
Sharma (P.W.-48) vide Ex. P/51 wherein he found that the
deceased was in a serious condition and she had suffered
90% burns and thereafter, he wrote a letter to the T.I. vide
Ex. P/50 informing him about the condition of the deceased
and for recording her dying declaration pursuant to which
her dying declaration was recorded on 08/04/2005 at 08:10
PM vide Ex. D/2 in the presence of Naib Tahsildar,
Baikunthpur namely S.R. Sidar (D.W.-1) wherein the
deceased had informed that some unknown person poured
kerosene oil on her body and set her on fire. Thereafter, on
being referred from Baikunthpur Hospital, the deceased was
admitted to Holy Cross Hospital, Ambikapur on
09/04/2005 at about 5 PM wherein she was examined by
Dr. Rachna (P.W.-52). Thereafter, again on 10/04/2005 at
07:30 PM, dying declaration of the deceased was recorded
by Tahsildar, Ambikapur namely Rajesh Sahi (D.W.-2) after
being certified by the Doctor that deceased was in proper
condition to give her statement. The deceased again stated
that some unknown person poured kerosene oil over her
and set her on fire. Thereafter, on 15/04/2022, the
deceased ultimately succumbed to death having suffered
severe burn injuries. After being informed by the Hospital,
Merg No. 0/05 was registered vide Ex. P/30 by Police
Station Gandhinagar and thereafter, merg No. 19/05 was
recorded by Police Station Patna vide Ex. P/38 and first
information report was recorded for offence punishable
under Section 302 of IPC vide Ex. P/53 and the wheels of
investigation started running. Spot map was prepared vide
Ex. P/31 and summons were issued to the witnesses vide
Ex. P/32. In the presence of the witnesses, inquest was
conducted vide Ex. P/33 and the dead body of deceased was
subjected to postmortem, which was conducted by Dr.
Faizal H. Firdausi (P.W.-50) and he has opined in the
postmortem report (Ex. P/52) that cause of death is due to
the effect of septic absorption from the infected ulcers from
burn injuries. Statements of prime witnesses namely Smt.
Phulkunver (P.W.-23), Phulbai (P.W.-24), Devpratap Singh
(P.W.-25), Keshlal Singh (P.W.-26), Vijay Kumar Jaiswal
(P.W.-27), Smt. Fulmatiya (P.W.-30), Smt. Poonam Mishra
(P.W.-38) and Swatantra Kumar Mishra (P.W.-39) were
recorded from 08/01/2007 to 12/05/2007 after conclusion
of merg inquiry before whom the deceased had allegedly
given oral dying declaration stating that it is the appellant
who had poured kerosene oil over her and set her on fire.
From the spot, burnt pieces of mattress, kerosene oil tin as
well as matchsticks were seized vide Ex. P/35 and though
they were sent for FSL vide Ex. P/44 but no FSL report has
been brought on record. Upon conclusion of the
investigation, the appellant was charge-sheeted for offence
punishable under Section 302 of IPC which was committed
to the Court of Sessions for hearing and disposal in
accordance with law.
4. In order to bring home the offence, prosecution examined as
many as 53 witnesses and brought on record 53
documents. The statements of appellant/accused person
was recorded wherein he denied guilt and he examined 2
witnesses and brought on record 2 documents in his
defence.
5. Learned trial Court, after appreciation of oral and
documentary evidence on record, finding the appellant to be
the perpetrator of the crime in question, proceeded to
convict him for offence punishable under Section 302 of IPC
and sentenced him as aforesaid.
6. Mr. Mahendra Dubey, learned counsel appearing for the
appellant, would make the following submissions :-
i) The trial Court is absolutely unjustified in disbelieving the
dying declaration given by the deceased on 08/04/2005 and
10/04/2005 vide Ex. D/2 and D/2A, respectively which
have been duly proved by S.R. Sidar (D.W.-1) and Rajesh
Sahi (D.W.-2) as it is a reliable piece of evidence and is
admissible under Section 32(1) of the Indian Evidence Act,
1872. Even prosecution has made an endeavour to withhold
production of Ex. D/2 and D/2A before the Court, as such,
presumption under Illustration (g) of Section 113 of the
Indian Evidence Act, 1872 can be made against the
prosecution.
iii) The oral dying declaration allegedly made by the
deceased before her parents namely Smt. Poonam Mishra
(P.W.-38) and Swatantra Kumar Mishra (P.W.-39) as well as
other witnesses namely Smt. Phulkunver (P.W.-23), Phulbai
(P.W.-24), Devpratap Singh (P.W.-25), Keshlal Singh (P.W.-
26), Vijay Kumar Jaiswal (P.W.-27), Smt. Fulmatiya (P.W.-
30) is not reliable and would be inadmissible in evidence in
view of the fact that the deceased was admitted in the
Hospital on 08/04/2005 and thereafter, she succumbed to
death on 15/04/2005 but the aforesaid witnesses have
stated about the alleged oral dying declaration in their
statements under Section 161 of CrPC which were recorded
from 08/01/2007 to 12/05/2007 and the statement of
Swatantra Kumar Mishra (P.W.-39), father of deceased, was
particularly taken on 24/02/2007. There is no explanation
for the said delay in making the statement about the alleged
oral dying declaration and in absence of any explanation,
oral dying declaration is not reliable and worthy of credence
and as such, it is liable to be rejected.
iv) Ex. P/2, which is a panchnama/memorandum statement
of the appellant, is clearly inadmissible in view of Section 25
of the Indian Evidence Act, 1872 and therefore, the trial
Court has committed grave legal error in placing reliance
upon Ex. P/2 in order to convict the appellant.
v) Prosecution has utterly and miserably failed to prove the
death of deceased to be homicidal in nature, as such, the
conviction of the appellant/accused for offence punishable
under Section 302 of IPC deserves to be set aside.
7. Per contra, Mr. Sudeep Verma, learned counsel appearing
for the respondent/State, would support the impugned
judgment and submit that the oral dying declaration given
by the deceased before her parents Smt. Poonam Mishra
(P.W.-38) and Swatantra Kumar Mishra (P.W.-39) is an
acceptable piece of evidence and therefore, learned trial
Court has rightly convicted the appellant for offence
punishable under Section 302 of IPC and in view of that, the
instant appeal deserves to be dismissed.
8. We have heard learned counsel for the parties, considered
their rival submissions made herein-above and went
through the records with utmost circumspection.
9. In the instant appeal, the following two questions arise for
consideration :-
i) Whether the death of deceased Smt. Prabha Pandey was
homicidal in nature ?
ii) Whether the appellant is the author of the crime in
question and he has caused the death of his wife Smt.
Prabha Pandey after pouring kerosene oil over her body and
setting her on fire ?
10. With regard to question No. (i) as to whether the death of
the deceased was homicidal in nature, learned trial Court,
in paragraph 22 of its judgment, relying upon inquest
report (Ex. P/33) as well as upon postmortem report (Ex.
P/50), has only recorded the finding that deceased Smt.
Prabha Pandey died as a result of burning, but further
finding as to whether her death was homicidal in nature
has not been recorded by the trial Court while convicting
the appellant herein for the offence in question. A careful
perusal of the postmortem report (Ex. P/50) would show
that the reason assigned by Dr. Faizal H. Firdausi (P.W.-50)
for the death of the deceased is due to the effects of septic
absorption from the infected ulcers from burn injuries but
whether the death was homicidal in nature has nowhere
been recorded in the postmortem report. Since neither the
Doctor has opined the death of the deceased to be homicidal
in nature nor the trial Court has recorded any finding with
regard to the death of deceased being homicidal in nature,
both the aforesaid questions as to whether the death of
deceased was homicidal in nature and whether the
appellant is the author of the crime in question are being
considered and decided together after considering the entire
circumstantial evidence available on record.
Dying declaration of the deceased vide Exhibits D/2 and
D/2A
11. Admittedly, deceased Smt. Prabha Pandey suffered burn
injuries on 08/04/2005 and she was taken to the District
Hospital, Baikunthpur which was informed to the
Baikunthpur Police Station pursuant to which, Rampratap
Sahu (P.W.-43) wrote a letter (Ex. P/39) and requested the
Assistant Surgeon, Baikunthpur to conduct MLC of the
deceased and also requested the concerned Executive
Magistrate to record her dying declaration. Thereafter, as
per the request made by the Baikunthpur Police Station,
Dr. Rameshwar Sharma (P.W.-48) examined the deceased
and as per the MLC report (Ex. P/51), he found that she
had suffered 90% burn injuries and they were bone deep
and grievous in nature and they were caused approximately
12 hours prior to her examination and thereafter, he wrote
a letter to the T.I. vide Ex. P/50 for recording dying
declaration of the deceased.
12. Pursuant thereof, dying declaration of the deceased was
recorded on 08/04/2005 at 08:10 PM by S.R. Sidar, Naib
Tahsildar, Baikunthpur (D.W.-1) vide Ex. D/2. In the said
dying declaration, the deceased has clearly stated that some
unknown person took her inside her house and after
pouring kerosene oil over her body set her on fire. Upon
being asked, the deceased has clearly stated that she does
not know the name of the assailant who set her ablaze. The
said dying declaration (Ex. D/2) has duly been proved by
S.R. Sidar (D.W.-1), Naib Tahsildar, Baikunthpur, who has
clearly stated before the Court that although along with the
said dying declaration, there is no such certificate of the
Doctor stating that the deceased was fit to give statement,
but he himself had recorded the dying declaration of the
deceased wherein she clearly stated that some unknown
person poured kerosene oil over her and put her on fire.
13. On the next day, i.e. 09/04/2005, the deceased was
referred to Holycross Hospital, Ambikapur and she was
admitted therein at 5 PM where she was again medically
examined by Dr. Pathak (not examined before the Court)
and after being certified that she was in a proper condition
to give her statement, her dying declaration was again
recorded on 10/04/2005 at 07:30 PM vide Ex. D/2A by
Rajesh Sahi (D.W.-2), Tahsildar-cum-Executive Magistrate,
Ambikapur who has been examined before the Court and he
has clearly stated to him that prior to recording the dying
declaration of the deceased, he took certificate from the
Doctor stating that the deceased was in a proper condition
to make such dying declaration and the deceased had
clearly stated that some unknown person poured kerosene
oil over her and thereafter burnt her by lighting fire on her
by matchstick. Despite being subjected to a lengthy cross-
examination, he has remained consistent in his version and
he has stated that other than him, the Doctor was also
present when the deceased was making her dying
declaration.
14. The question for consideration is, whether the dying
declaration of the deceased recorded vide Ex. D/2 and D/2A
by S.R. Sidar (D.W-1) and Rajesh Sahi (D.W.-2),
respectively, during the course of the treatment would be
relevant under Section 32 of the Evidence Act ?
15. 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 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 statement is relevant. The
Supreme Court in the matter of Sharad Birdichand Sarda
v. State of Maharashtra1 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 circumstances leading to the
death. The decision of the Supreme Court in Sharad
Birdichand Sarda (supra) has further been followed by the
Supreme Court in the matter of Kans Raj v. State of
Punjab2 reviewing the earlier authorities. In Sharad
Birdichand Sarda (supra), following propositions have been
laid :-
"(1) Section 32 is an exception of 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,
1 AIR 1984 SC 1622
2 AIR 2000 SC 2324
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 cit-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 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."
16. Thereafter, in the matter of Devinder alias Kala Ram and
others v. State of Haryana3, wherein the deceased, who
3 (2012) 10 SCC 763
sustained burn injuries while cooking meals on stove, had
made a statement to the Doctor, their Lordships of the
Supreme Court have 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, fact 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
while 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."
17. Reverting to the facts of the present case in light of the
statements of S.R. Sidar (D.W.-1) and Rajesh Sahi (D.W.-2)
duly proving the documents Ex. D/2 and D/2A, which are
dying declarations of the deceased, it is quite vivid that
deceased Smt. Prabha Pandey suffered burn injuries while
she was at her home and immediately thereafter, she was
taken to the District Hospital, Baikunthpur and after the
Hospital authorities informed the Baikunthpur Police
Station, Rampratap Sahu (P.W.-43) requested the Assistant
Surgeon, Baikunthpur to conduct medical examination of
the deceased as well as the concerned Executive Magistrate
to record her dying declaration vide Ex. P/39. Pursuant
thereof, dying declaration of the deceased was recorded
firstly on 08/05/2004 at 08:10 PM by S.R. Sidar, Naib
Tahsildar, Baikunthpur (D.W.-1) vide Ex. D/2 and
thereafter, on 10/05/2004 at 07:30 PM by Rajesh Sahi,
Tahsildar, Ambikapur (D.W.-2) vide Ex. D/2A wherein the
deceased has clearly stated that some unknown person had
set her ablaze after pouring kerosene oil over her body and
despite being asked again, she did not disclose the identity
of her assailant. As such, the dying declaration of the
deceased was recorded duly at the instance of the
Baikunthpur Police Officer which is apparent from the
statements of Rampratap Sahu (P.W.-43) and Dr.
Rameshwar Sharma (P.W.-48). In that view of the matter,
the said dying declaration recorded vide Ex. D/2 and D/2A
cannot be said to be forged documents particularly when
they have been recorded by the Executive Magistrates S.R.
Sidar (D.W.-1) and Rajesh Sahi (D.W.-2) and they have been
examined before the Court and no suggestion has been
made on behalf of the prosecution that these are forged
documents or they have been prepared at the instance of
the appellant to screen him from the offence in question. As
such, there is no reason to disbelieve the said dying
declaration given by the deceased vide Ex. D/2 and D/2A
wherein she has stated that some unknown person attacked
her and committed the crime in question and it would be
relevant under Section 32(1) of the Indian Evidence Act,
1872.
Oral dying declaration
18. Now, the next circumstance that requires consideration is
the alleged oral dying declaration made by the deceased to
her mother namely Smt. Poonam Mishra (P.W.-38) and to
her father namely Swatantra Kumar Mishra (P.W.-39),
which has been relied upon by the trial Court. Admittedly,
the date of incident is 08/04/2005 and the deceased Smt.
Prabha Pandey succumbed to death on 15/04/2005.
Thereafater, merg intimation was recorded on 16/04/2005
vide Ex. P/30 and the 161 CrPC statement of father of
deceased, Swatantra Kumar Mishra (P.W.-39), was recorded
on 24/02/2007 and that of her mother Smt. Poonam
Mishra's (P.W.-39) was recorded on 12/05/2007.
19. It is well-settled law that oral dying declaration is a weak
kind of evidence. In the matter of Darshana Devi v. State
of Punjab4, with regard to oral dying declaration, their
Lordships of the Supreme Court have held that an oral
dying declaration can form basis of evidence in a given case,
but such a dying declaration has to be trustworthy and free
from every blemish and inspire confidence.
4 1995 Supp (4) SCC 126
20. Similarly, in the matter of Arun Bhanudas Pawar v. State
of Maharashtra5, it has been held by their Lordships of the
Supreme Court that the oral dying declaration made by the
deceased ought to be treated with care and caution since
the maker of the statement cannot be subjected to any
cross-examination.
21. Furthermore, the Supreme Court, in the matter of Walkhom
Yaima Singh v. State of Manipur6, has held that there can
be no dispute that the dying declaration can be the sole
basis for conviction, however, such dying declaration has to
be proved to be wholly reliable, voluntary and truthful and
further that the maker thereof must be in a fit medical
condition to make it. It has also been held that oral dying
declaration is a weak kind of evidence.
22. The principle emerging out from the aforesaid decisions
rendered by their Lordships of the Supreme Court is that
oral dying declaration is a weak kind of evidence and it can
only be made the basis of conviction, if it inspires full
confidence of the Court and if the Court is satisfied that the
maker of the said oral dying declaration was in a fit state of
mind at the time of making it and that it was not an
outcome of tutoring, prompting or imagination and where
the dying declaration is suspicious and there is no other
corroborative piece of evidence on record, it would be unsafe
5 (2008) 11 SCC 232
6 (2011) 13 SCC 125
for the Court to record conviction on the solitary evidence of
such oral dying declaration.
23. Reverting to the facts of the present case in light of the
aforesaid principle of law laid down by Their Lordships of
the Supreme Court with regard to evidentiary value of oral
dying declaration as a basis for conviction, it is quite vivid
that in the instant case the deceased suffered burn injuries
on 08/04/2005 and immediately thereafter, she was taken
to the District Hospital, Baikunthpur, wherein her dying
declaration was recorded by S.R. Sidar (D.W.-1), Naib
Tahsildar, Baikunthpur vide Ex. D/2 and thereafter, again
her dying declaration was recorded on 10/04/2005 by
Rajesh Sahi (D.W.-2), Tahsildar, Ambikapur vide Ex. D/2A
and in both of these dying declarations, she did not disclose
the identity of her assailant and clearly stated twice that
some unknown person poured kerosene oil over her and lit
fire on her and ultimately, on 15/04/2005, she succumbed
to death pursuant to which merg intimation was recorded
on 16/04/2005 vide Ex. P/38 and first information report
was registered on 01/07/2005 vide Ex. P/53 and merg
inquiry concluded after more than a year. The statement of
father of the deceased namely Swatantra Kumar Mishra
(P.W.-39) under Section 161 of CrPC was recorded on
24/02/2007 and the mother of the deceased namley Smt.
Poonam Mishra (P.W.-38) was recorded on 12/05/2007 in
which they have alleged that their daughter deceased Smt.
Prabha Pandey made an oral dying declaration before them
and it is the appellant who had poured kerosene oil over her
and set her on fire. It is pertinent to notice here the
statements of these two witnesses (P.W.-38 and 39) under
Section 161 of CrPC were recorded with a delay of more
than 20 months, though on the aspect of said delay, the
Investigating Officer has not been cross-examination on
behalf of the defence, yet as laid down by Their Lordships
of the Supreme Court in the aforesaid judgments (supra),
oral dying declaration is a weak kind of evidence and it can
only be made the basis of conviction, if it inspires full
confidence of the Court. As such, we are of the considered
opinion that the alleged oral dying declaration made by the
deceased before her parents Smt. Poonam Mishra (P.W.-38)
and Swatantra Kumar Mishra (P.W.-39) does not inspire full
confidence in view of the two dying declarations (Ex. D/2
and D/2A) recorded by Executive Magistrates S.R. Sidar
(D.W.-1) and Rajesh Sahi (D.W.-2) not implicating the
appellant and the huge delay in recording the statements of
parents of the deceased namley Smt. Poonam Mishra (P.W.-
38) and Swatantra Kumar Mishra (P.W.-39) and their
conduct of not disclosing the alleged oral dying declaration
made by the deceased to anyone at an earlier point of time.
As such, it would be unsafe to rely upon the oral dying
declaration of the deceased and thus, we hereby reject the
evidence of oral dying declaration.
Panchnama statement of the appellant vide Ex. P/2
24. Lastly, the trial Court has relied upon Ex. P/2 as one of the
incriminating circumstances against the appellant herein.
The said document, Ex. P/2, is a panchnama statement of
the appellant made before the S.H.O. Tejnath Singh (P.W.-
44) on 27/02/2007 at 08:50 PM i.e. after more than 20
months from the date of the incident, in which he has
allegedly confessed that he has caused the death of his wife
Smt. Prabha Pandey. Strong reliance has been placed by the
trial Court upon this document (Ex. P/2) for convicting the
appellant for the aforesaid offence.
25. Section 25 of the Indian Evidence Act, 1872 provides that
no confession made to a police officer, shall be proved as
against a person accused of any offence. Section 25 makes
confessional statement of accused before police officers
inadmissible in evidence which cannot be brought on record
by prosecution to obtain conviction (See: Ram Singh v.
Central Bureau of Narcotics7).
26. Since Ex. P/2 i.e. panchnama statement of the appellant
has been recorded after 20 months from the date of
incident, it is hit by Section 25 of the Indian Evidence Act,
1872, as such, the trial Court is absolutely unjustified in
convicting the appellant for the aforesaid offence after
placing reliance upon Ex. P/2.
7 (2011) 11 SCC 347
Conclusion
27. Resultantly, we are of the opinion that prosecution has
utterly and miserably failed to establish that the death of
deceased Smt. Prabha Pandey was homicidal in nature and
further failed to establish that the appellant is the author of
the crime in view of the fact that deceased had given dying
declaration (Ex. D/2 and D/2A) in which she has clearly not
named the appellant to be author of the crime in question.
Moreover, the oral dying declaration allegedly made by the
deceased before her mother (P.W.-38) and father (P.W.-39) is
a weak kind of evidence and it cannot be relied upon to
convict the appellant herein for the reasons recorded
herein-above. Furthermore, Ex. P/2, which is panchnama
statement of the appellant, is hit by Section 25 of the Indian
Evidence Act, 1872.
28. In conclusion of the aforesaid legal discussion, we hereby
set aside the impugned judgment dated 05/01/2012
(Annexure A/1) passed by the Sessions Judge Koriya
(Baikunthpur) Distt. Koriya in Sessions Trial No. 62/2007
whereby he has been convicted for offence punishable
under Section 302 of the IPC and sentenced as aforesaid.
The appellant is acquitted from the charges levelled against
him. Since he is already on bail, he need not surrender.
However, his bail bonds shall remain in force for the period
of six months in view of Section 437A of CrPC.
29. Accordingly, this criminal appeal stands allowed.
Sd/- Sd/-
(Sanjay K. Agrawal) (Deepak Kumar Tiwari)
Judge Judge
Harneet
