Chattisgarh High Court
Subhash Chand Patel And Anr vs State Of Chhattisgarh on 30 January, 2023
1
AFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Criminal Appeal No. 747 of 2013
Judgment Reserved on : 04.01.2023
Judgment delivered on : 30.01.2023
Smt. Janki Bai Patel, W/o. Subhash Chand Patel, Aged About 47
Years, R/o. Village & Post. Marghatti, Police Station- Jaijaipur, Tahsil
Sakti, District Janjgir-Champa, Chhattisgarh
---Appellant
Versus
State Of Chhattisgarh, Through Police Station -Jaijaipur, District
Janjgir-Champa, Chhattisgarh
---Respondent
CRA No. 706 of 2013
1. Subhash Chand Patel, S/o. Tanik Chand Patel, Aged About 52 Years.
2. Khagraj Patel, S/o. Subhash Chand Patel, Aged About 28 Years.
Both Are R/o. Village & Post Marghatti, Police Chauki Hasaud, Police
Station- Jaijaipur, Tahsil Sakti, District Janjgir Champa, Chhattisgarh
---- Petitioners
Versus
State Of Chhattisgarh, Through the Police Station- Jaijaipur, District
Janjgir Champa, Chhattisgarh
---- Respondent
For Appellants : Mr. Roop Naik, Advocate
For State-Respondent : Mr. Sudeep Verma, Dy. Govt. Advocate
Hon'ble Shri Justice Sanjay K. Agrawal
Hon'ble Shri Justice Rakesh Mohan Pandey
2
C.A.V Judgment
Sanjay K. Agrawal, J.
1. In both the appeals, since common question of fact and law is
involved and have been arisen from one Sessions Trial
No.71/2012, therefore, both the appeals have been clubbed
together, heard together and are being decided by this common
judgment.
2. Criminal Appeal No.747 of 2013 has been filed by the sole
appellant, namely Smt. Janki Bai under Section 374(2) of
Cr.P.C. questioning the legality, validity and correctness of
impugned judgment of conviction and order of sentence dated
25.07.2013, whereby she has been convicted and sentenced to
undergo as under :
CONVICTION SENTENCE
U/s. 498(A) of I.P.C. R.I. for 3 years with fine of
Rs.10,000/-, in default of payment of
fine, additional R.I. for 6 months.
U/s. 302 of I.P.C. Life imprisonment with fine of
Rs.10,000/-, in default of payment of
fine, additional R.I. for 6 months.
3. Criminal Appeal No.706 of 2013 has been filed by the
appellants, namely Subhash Chand Patel and Khagraj Patel
under Section 374(2) of Cr.P.C. questioning the legality, validity
and correctness of the impugned judgment of conviction and
order of sentence dated 25.07.2013, whereby they have been
convicted and sentenced as under :
CONVICTION SENTENCE
U/s. 498(A) of I.P.C. R.I. for 3 years with fine of
Rs.10,000/- each, in default of
payment of fine, additional R.I. for 6
months.
4. Case of the prosecution, in short, is that on 27.12.2011 at 6:00
A.M. at village Marghatti, P.S. Jaijaipur, District Janjgir-
Champa, Janki Bai (mother-in-law), Subhash Patel (father-in-
law) and Khagraj Patel (husband) have treated the deceased
Khemkumari with cruelty and quarreled with her and in
furtherance of common intention poured kerosene oil on her
body and set her ablaze by which she suffered grievous burn
injury and ultimately died on 30.01.2012, which is within seven
years from the date of marriage; thereby, they committed
aforesaid offences.
5. On information being given, father of the deceased Khemkumari
namely Prem Singh Patel (PW-1) reached immediately to village
Marghatti and in the meanwhile, Khemkumari was escorted for
medical treatment to Asharfi Devi Mahila Hospital, Raigarh,
where Dr. Rupendra Patel (PW-8) examined injured
Khemkumari and advised her family members to take her to
Fortis Jindal Hospital, Raipur for better medical treatment. The
initial treatment memo is Ex.P-12 and meanwhile Dr. Rupendra
Patel (PW-8) has also informed Police Station- City Kotwali,
Raigarh regarding the incident vide Ex.P-11 dated 27.12.2011
and on receiving the information, the police recorded statement
of the deceased Khemkumari under Section 161 of Cr.P.C. vide
Ex.P-26 and also recorded the statement of her father namely
Prem Singh Patel (PW-1) vide Ex.P-27. On the same date, the
police issued a memo requesting the Sub Divisional Officer,
Raigarh to record the dying declaration of injured Khemkumari
vide Ex.P-28. Consequently, the Executive Magistrate/ Tahsildar
namely Amit Kumar Shrivastava (PW-16) has recorded dying
declaration of the injured Khemkumari vide Ex.P-14 in presence
of two independent witnesses namely Jitendra Kumar (PW-9)
and Ramnarayan Patel (not examined).
6. It is further case of the prosecution that, in the mean time, on
27.12.2011, Police Station Kotra Road, Raigarh, registered FIR
at Zero number vide Ex.P-29 and on the next date, Police
Station Jaijaipur, District Raigarh has registered FIR bearing
Crime No.276/2011 vide Ex.P-31 against the present appellants
and on the same date, prepared the property seizure memo vide
Ex.P-9 and seized the incriminating articles from the spot. On
29.12.2011, Police Station Jaijaipur has prepared a 'Mauka
Panchnama' of the spot vide Ex.P-6 and examined Nutan Patel
(PW-2) and Lalmani Patel (PW-3) as independent witness of the
same. Furthermore, on advice of Dr. Rupendra Patel (PW-8),
father of Khemkumari namely Prem Singh Patel (PW-1)
escorted her daughter to Fortis Jindal Hospital, Raigarh, where
she was admitted and treated by Dr. Arvind Kumar Singhal
(PW-17) from 27.12.2011 to 28.01.2012. The medical treatment
tickets of Khemkumari of Fortis Jindal Hospital have been
brought on record as Ex.P-30. Thereafter, since the medical
condition of the injured Khemkumari could not much improve,
as expected and huge financial burden is being caused to father
of the injured Prem Singh Patel (PW-1), the family members of
Khemkumari decided to get her discharged from the Hospital on
28.01.2012 and after discharge, brought her back to their house
at village Gorra, where she succumbed to death on account of
burn injuries on 30.01.2012.
7. Thereafter, inquest was conducted by Police Station Kotra Road
vide Ex.P-2 and registered a merg intimation at Zero number on
30.01.2012 vide Ex.P-10 and later on registered Merg
No.08/2012 ws recorded by Police Station Jaijaipur vide Ex.P-
17 on information given by Police Station Kotra Road, Raigarh.
Thereafter, on the recommendation of Panchas, the dead body
of Khemkumari was sent for post-mortem which was conducted
by Dr. S.Lakda (PW-12) who proved his post-mortem report vide
Ex.P-18 and disclosed the cause of death as septic shock due
to burn injuries.
8. On due investigation and upon recording the statements of the
prosecution witnesses, the Investigation Officer N.S.Rajput
(PW-14) charge-sheeted the appellants before the criminal court
and ultimately it was committed to the Court of Sessions for trial
in accordance with law, in which the appellants abjured their
guilt and entered into defence and examined Smt. Sita Patel as
DW-1.
9. In order to bring home the offence, prosecution examined as
many as 19 witnesses and exhibited 33 documents, Exs.P-1 to
P-33; whereas the defence has examined none, but exhibited
the documents Exs.D-1 & D-4.
10. The trial Court, after appreciation of oral and documentary
evidence on record, convicted and sentenced the appellants
herein as mentioned in the opening paragraph of this judgment,
against which the present appeals have been preferred.
11. Mr. Roop Naik, learned counsel for the appellants would submit
as under :
(i) That the appellant Janki Bai has mainly been convicted on
the basis of dying declaration Ex.P-14, which has not been
proved in accordance with law. In the dying declaration, there is
no mention that at the time of making dying declaration, the
deceased was in a fit state of mind and there is no certificate of
any Doctor regarding the mental and physical fitness of the
deceased to make dying declaration. Therefore, the dying
declaration (Ex.P-14) is suspicious and unreliable document and
it would be unsafe to convict on the basis of said dying
declaration (Ex.P-14).
(ii) That, the dying declaration of the deceased Khemkumari
(Ex.P-14) has been recorded by the Executive Magistrate Amit
Shrivastava (PW-16), but there is no official communication to
the said Executive Magistrate to record the dying declaration of
the deceased, therefore, it is inadmissible in evidence and liable
to be rejected.
(iii) That, the dying declaration of the deceased Khemkumari
has been recorded by the Executive Magistrate before the
registration of the FIR on 27.12.2011 at 3:00 P.M. whereas the
FIR has been registered against the appellants on 27.12.2011
by Police Station Kotra Road at Zero number vide Ex.P-29 i.e.
after recording of dying declaration and therefore the dying
declaration is inadmissible in evidence and it is unreliable as
well.
(iv) That, the deceased Khemkumari suffered burn injury on
27.12.2011 and died on 30.01.2012, after a period of more than
one month, as she was got discharged by her father Prem Singh
Patel (PW-1) and other relatives of the deceased against the
medical opinion, which is apparent from the statement of the
father (PW-1) and discharge was done on account of financial
constraints and since the deceased died on account of not
getting proper treatment at that time due to septic shock, the
appellant Janki Bai Patel could not be convicted for offence of
murder under Section 302 of I.P.C.
(v) He would also submit that the conviction of the appellant
Janki Bai in Criminal Appeal No.747 of 2013 and other two
appellants Subhash Chand Patel and Khagraj Patel in Criminal
Appeal No.706 of 2013 is unmerited as all the three appellants
have been acquitted from the offence under Section 304(B) of
I.P.C. as such, their conviction of offence under Section 498-A
of I.P.C. deserves to be set aside.
12. Replying the contention of learned counsel for the appellants,
Mr. Sudeep Verma, learned Dy. Govt. Advocate would submit
as under :
(i) That, the prosecution has been able to prove the offence
under Section 302 and 498-A of I.P.C. against the appellant
Janki Bai Patel beyond reasonable doubt and therefore she has
rightly been convicted for the aforesaid offence.
(ii) That the Executive Magistrate Amit Shrivastava (PW-16)
clearly stated before the Court that at the time of making
statement, the injured Khemkumari was mentally fit and she was
in position to make dying declaration and she has replied the
questions put to her confidently and furthermore, the witness to
Ex.P-14 namely Jitendra Kumar (PW-9) has also supported that
the declarant was in fit state of mind at the time of making dying
declaration. Dr. Rupendra Patel (PW-8) in his memo vide Ex.P-
12 has clearly recorded that the deceased at the relevant point
of time was in fit state of mind and similarly Ex.P-30 (case
history maintained by Fortis Jindal Hospital) and acknowledged
by Dr. Arvind Kumar Singhal (PW-17) have also clearly stated
that during the course of treatment, she was in fit state of mind.
(iii) Similarly, he would also refer to Explanation 2 to Section
299 of I.P.C. and would submit that the argument raised by
learned counsel for the appellants in view of her discharge from
the hospital by the parents of the deceased, is also misplaced in
light of Explanation 2 of Section 299 of I.P.C.
Explanation 2. - Where death is caused by bodily
injury, the person who causes such bodily injury
shall be deemed to have caused the death, although
by resorting to proper remedies and skillful treatment
the death might have been prevented.
(iv) He would submit that the conviction of the appellant Janki
Bai and other appellants are well merited and both the appeals
deserve to be dismissed.
13. We have heard learned counsel for the parties, considered their
rival submissions made herein-above and went through the
records with utmost circumspection.
14. The question for consideration is, whether the dying declaration
of the deceased recorded vide Ex.P-14 by the Executive
Magistrate/ Tahsildar namely Amit Kumar Shrivastava (PW-16)
in presence of two independent witnesses Jitendra Kumar (PW-
9) and Ramnarayan Patel (not examined) during the course of
treatment would be relevant and admissible under Section 32(1)
of the Indian 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 Maharashtra 1 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, has thought it
necessary to widen the sphere of Section 32 to
avoid injustice.
1 AIR 1984 SC 1622
2 AIR 2000 SC 2324
(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. At this stage, it would be appropriate to notice the dying
declaration vide Ex.P-14. For ready reference, it states as
under:
ej.kklUu c;ku & vkfgrk [ksedqekjh
fnukad & 27-12-11
uke & Jhefr [ksedqekjh] ifr & [kxjkt iVsy] 25 o"kZ] tkfr &
v?kfj;k] lk- xzke& ej?kV~Vh] Fkkuk & glkSn] ftyk & tkatxhj
pkaik
iz- [ksedqekjh] D;k vki c;ku nsaxh\
m- gkaA
iz- vki] dSls ty xbZ\
m- vkt lqcg tc eSa pwYgs ij jksVh idkus ds fy, d.Ms ls vkx
tyk jgh FkhA mlh le; esjh lkl tkudh ckbZ vkbZA mlus eq>
ij feVVh rsy Mkydj eq>s tyk;kA eSa cpus ds fy, fpYykbZA
esjs llqj fpYykus dh vkokt lqudj vk, vkSj eq> ij ikuh
MkykA
iz- vkidh lkl us vkidks D;ksa Tkyk;k\
m- esjh lkl] llqj rFkk ifr eq>s izk;% ngst ds fy, rax djrs
FksA eq>ls fQzt] okf'kax e'khu dh ekax fd;k djrs FksA esjh lkl
esjs ifr dks esjs ikl ugha vkus nsrh Fkh rFkk eksgYys esa tkus ij
rkuk ekjrh FkhA
iz- vkidks fdlh ckgjh O;fDr ls Hkh dksbZ rdyhQ gS\
m- ughaA vkSj fdlh ls dksbZ d"V ugha gS
iz- vkids Åij feVVh rsy Mkyus ds ckn vkidks vkx dSls
yxhA\
m- esjs Åij feVVh rsy Mkyus ds ckn esjh lkl us ekfpl ls eq>
ij vkx yxkbZA eSa viuh nhnh iq"ik] tks [kM+xkao esa jgrh gS] ds
ikl tkuk pkg jgh FkhA esjh lkl us eq>s euk dj fn;k FkkA
iz- vkSj dqN dguk pkgrh gSa\
m- ugha""
iapl
1- ftrsUnz iVsy vk0 Jh j{kiky]""""
daikm.Mj v'kdhZ nsch gkfLiVy] jk;x<+
2- jkeukjk;.k iVsy vk0 Jh 'k=qgu flag
daikm.Mj v'kdhZ nsch gkfLiVy
esjs le{k iwjs gks'kks&gokl esa fcuk fdlh ncko ds iapkuksa dh
mifLFkfr esa c;ku fn;k ftls ntZ fd;kA""
17. Admittedly, the deceased suffered burn injury on 27.12.2011 at
6:00 P.M. and she was hospitalized at 10 A.M. for treatment by
the accused persons to Asharfi Devi Hospital at Raigarh and
she was treated by Dr. Rupendra Patel (PW-8) and immediately
thereafter as per the statement of Dr. Rupendra Patel (PW-8)
she was examined vide Ex.P-12 in which he found that the
deceased has suffered burn injury to the extent of 40% and she
was conscious at that time and able to give her statement. At
the same time, it revealed her condition to be serious, therefore,
the dying declaration Ex.P-14 was recorded and that too has
been recorded by Executive Magistrate-Amit Kumar Shrivastava
(PW-16) in presence of Jitendra Kumar (PW-9) and
Ramnarayan Patel (not examined).
18. Amit Kumar Shrivastava (PW-16) has proved the dying
declaration by recording his statement before the Court. In the
statement before the Court, he has clearly proved Ex.P-14 by
examining himself and in para 9, he has clearly stated that the
deceased was fully conscious and able to understand anything
though it has not been recorded in dying declaration (Ex.P-14).
He also denied the fact that on account of pain killer injection
she was not in a position to make dying declaration. He has
clearly supported the dying declaration vide Ex.P-14 made by
the deceased Khemkumari.
19. At this stage, the argument raised on behalf of the appellants
that the deceased Khemkumari was not mentally fit or in a state
of mind to make dying declaration, deserves to be noticed.
20. Admittedly, in the dying declaration (Ex.P-14), it has not been
recorded that the deceased was mentally fit to make dying
declaration but vide Ex.P-12 recorded by Dr. Rupendra Patel
(PW-8), it has clearly been recorded that at the time of her
examination on 27.12.2011, at 11:00 A.M., she was conscious
and able to give statement though serious and thereafter at 3:00
P.M. her statement (dying declaration) has been recorded.
21. The argument raised on behalf of the appellant that since
satisfaction about the fit mental condition has not been
recorded, therefore, dying declaration should be discarded.
22. The Supreme Court in the matter of Laxman v. State of
Maharashtra3 (Constitution Bench) has clearly held that a
certification by the doctor is essentially a rule of caution and
therefore the voluntary and truthful nature of the declaration can
be established otherwise and observed as under :
"3......Where it is proved by the testimony of the
Magistrate that the declarant was fit to make the
statement even without examination by the doctor
the declaration can be acted upon provided the
court ultimately holds the same to be voluntary
and truthful. A certification by the doctor is
essentially a rule of caution and therefore the
voluntary and truthful nature of the declaration can
be established otherwise."
23. Following the principles of law laid down by their Lordships of
the Supreme Court in Laxman (supra), recently in the matter of
Jagbir Singh v. State of NCT4 it has been held by the Supreme
Court that even absence of the certificate by a doctor is not fatal
to act upon a dying declaration. However, the requirement
remains that the person who records the dying declaration must
ensure that the patient was in a fit condition, both mentally and
physically, to give the declaration. It is held as under :
"38. The first question, one must bear in mind, is
whether the deceased was in a physical and mental
condition to make a dying declaration. It is not in
dispute that in the dying declaration dated
27.01.2008, there is no certificate by the Doctor
3 (2002) 6 SCC 710
4 (2019) 8 SCC 779
certifying that the patient was conscious or that the
patient was mentally or physically fit to give the
declaration. The patient was, in fact, admittedly lying
in the hospital. Even in the narrative of the dying
declaration, there are no questions seen put by
PW29 to ascertain her condition. Undoubtedly, it is
true that the certificate by a Doctor about the patient
being conscious and fit to give a dying declaration
would go a long way in inspiring confidence of the
court. However, the Constitution Bench in Laxman v.
State of Maharashtra (2002) 6 SCC 710 has held as
follows :
"3......Where it is proved by the testimony of
the Magistrate that the declarant was fit to
make the statement even without
examination by the doctor the declaration can
be acted upon provided the court ultimately
holds the same to be voluntary and truthful. A
certification by the doctor is essentially a rule
of caution and therefore the voluntary and
truthful nature of the declaration can be
established otherwise."
39. We can proceed on the basis that even
absence of the certificate by a Doctor is not fatal to
act upon a dying declaration. However, the
requirement remains that the person who records
the dying declaration must ensure that the patient
was in a fit condition, both mentally and physically, to
give the declaration."
24. Turning to the facts of this case in light of the principles of law
laid down by their Lordships of the Supreme Court in Laxman
(supra) followed with approval in case of Jagbir Singh (supra),
it reveals that in the present case the Executive Magistrate i.e.
Amit Kumar Shrivastava (PW-16) has clearly stated that while
recording the statement the deceased was mentally conscious
and in a fit condition to hear and understand the questions put to
her and further she specifically replied all the questions put
to her. The said fact has further been affirmed by Jitendra
Kumar (PW-9) who is panch witness of Ex.P-14 and furthermore
it has also been proved by Dr. Rupendra Patel (PW-8) vide
Ex.P-12, when she was admitted to Asharfi Devi Hospital at
11:00 A.M. on 27.12.2011 and Ex.P-30 proved by Dr. Arvind
Kumar Singhal (PW-17) who treated her at Fortis Jindal
Hospital. As such, the argument raised on behalf of the
appellants that absence of certificate of the Doctor is fatal to act
upon dying declaration deserves to be and is accordingly
rejected.
25. The next submission raised on behalf of the appellants is that
the dying declaration of the deceased Khemkumari was
recorded by the Executive Magistrate Amit Kumar Shrivastava
(PW-16) without there being any official communication,
therefore, the dying declaration is inadmissible in evidence.
26. The S.H.O. (PW-15) has requested the S.D.M. Raigarh vide
Ex.P-28 to get the statement of dying declaration recorded
which Amit Shrivastava (PW-16) has acknowledged vide
Ex.P-28 and thereafter Amit Shrivastava (PW-16) has recorded
the statement of the deceased vide Ex.P-14. Thus, it is incorrect
to say that the Executive Magistrate (PW-16) has recorded the
statement of the deceased Khemkumari without there being any
official communication in writing. Furthermore, by virtue of
Illustration (e) to Section 114 of Indian Evidence Act, the Court
may presume that the official acts have been regularly
performed and as such, the argument raised in this behalf also
deserves to be rejected.
27. The next submission that has been made on behalf of the
appellants is that the dying declaration has been recorded by
the Executive Magistrate Amit Kumar Shrivastava (PW-16) on
27.12.2011 at 3:00 P.M. and thereafter the FIR has been
registered on the same day at Zero number vide Ex.P-29,
therefore, it is not recorded in the course of investigation and
therefore it is inadmissible in evidence and the Court should not
have placed reliance upon the dying declaration Ex.P-14.
28. The Privy Council in the matter of Pakalanarayana Swami v.
King Emperor5 has clearly held that the only requirement for
the admissibility of dying declaration is that the statement must
be made in relation to the cause of death, or exhibits
circumstances leading to death of a person, who's death is
under consideration in judicial proceedings though whatever
nature of it may have. Furthermore, the principles of law laid
down in Pakalanarayana Swami has been followed with
approval by the Supreme Court recently in the matter of
Surendran v. State of Kerala6 and has been reiterated the
same in para 18 of the judgment, as such, the argument raised
in this behalf is liable to be rejected.
5 AIR 1939 Privy Council 47
6 AIR 2022 SC 2322
29. The next submission that has been vehementally argued is that
the deceased Khemkumari has committed suicide as she has
past history of mental instability / mental weakness and
therefore the said dying declaration is inadmissible in evidence.
The Executive Magistrate (PW-16) who has been examined has
clearly stated before the Court that while making statement
contained in Ex.P-14, the deceased Khemkumari was fully
conscious and in a fit state of mind to hear and understand the
questions asked to her and she has specifically replied all the
questions asked to her and the same has been affirmed by the
panch witness Jitendra Kumar (PW-9). Furthermore, the
deceased while making police statement under Section 161
Cr.P.C. before Raja Nand Yadav (PW-15) had clearly stated
that she was burnt by her mother-in-law i.e. appellant in Criminal
Appeal No.474/2013 and her husband namely Khagraj Patel
and her father-in-law Subhash Patel & they used to harass her
for demand of dowry. Since Khemkumari later on died on
30.01.2012, her statement under Section 161 Cr.P.C. is treated
as statement under Section 32(1) of Evidence Act and is
admissible as valid piece of evidence, therefore, the argument
raised in this behalf is rejected.
30. The last submission that has been made on behalf of the
appellants is that the incident is said to have been occurred on
27.12.2011 and the deceased was discharged against the
medical opinion by the parents of the deceased on 30.01.2012
from Fortis Jindal Hospital and suddenly she died due to septic
shock, therefore, the appellant Janki Bai Patel cannot be held
liable for offence of murder. This argument raised on behalf of
the appellant Janki Bai ignores Explanation 2 of Section 299 of
I.P.C.
31. Section 299 of I.P.C. defines culpable homicide and Explanation
2 has a material which reads as under : -
"299. Culpable homicide - Whoever causes
death by doing an act with the intention of causing
death, or with the intention of causing such bodily
injury as is likely to cause death, or with the
knowledge that he is likely by such act to cause
death, commits the offence of culpable homicide.
Explanation 2 - Where death is caused by
bodily injury, the person who causes such bodily
injury shall be deemed to have caused the death,
although by resorting to proper remedies and
skilful treatment the death might have been
prevented."
32. In the matter of Sudershan Kumar v. State of Delhi 7 their
Lordships of Supreme Court affirmed the conviction under
Section 302 of I.P.C. by considering the fact that there were
35% burn injuries by pouring of acid which according to Doctors'
evidence was due to toxaemia and septicaemia from absorption
of toxins. Their Lordships also considered the relevant
Explanation 2 to Section 299, which provides that death is
caused by bodily injury, the person who causes such bodily
7 (1975) 3 SCC 831
injury shall be deemed to have caused the death, although by
resorting to proper remedies and skilful treatment the death
might have been prevented. The aforesaid judgment has been
followed by the Supreme Court in case of Veerla
Satyanarayana v. State of Andhra Pradesh 8.
33. The Modi,s Medical Jurisprudence and Toxicology dealing with
the death by burns has held as already mentioned death may
occur within 44-48 hours, but usually the first week is most fatal
in suppurative cases death may occur after 5 to 6 weeks or
even longer. {See :- (2002) 1 SCC 22 (Patel Hiralal Joitaram v.
State of Gujrat)}. In view of this legal position, argument of
learned counsel is hereby rejected.
34. At this stage, it would be appropriate to notice the judgments
cited by the learned counsel for the appellants, in the judgments
of Supreme Court of Samaj Parivartan Samudaya & Ors. v.
State of Karnataka & Ors.9 and Lalita Kumari v. Government
of Uttar Pradesh & Ors.10 which are totally irrelevant to the
facts of the present case and not applicable in the case before
us.
35. The Supreme Court in the matter of Uka Ram v. State of
Rajasthan11 has laid down the safeguards to be taken by the
Court before relying upon dying declaration and further laid
down the principles when the dying declaration can be made
8 (2009) 16 SCC 316
9 (2012) 7 SCC 407
10 (2014) 2 SCC 1
11 (2001) 5 SCC 254
sole basis for conviction and in the decision cited by learned
counsel for the appellants in the matter of Sampat Babso Kale
& Anr. v. State of Maharashtra 12, the Supreme Court has laid
down the principles regarding the evidence available of dying
declaration recorded by the Doctor and Magistrate and further
held, when the corroboration is necessary. However, the
decision rendered by the Supreme Court in the matter of State
of Haryana v. Ram Singh13 is clearly distinguishable to the
facts of the present case and inapplicable to the facts of the
case in hand.
36. In view of the aforesaid legal analysis, we are of the considered
opinion that the prosecution has been able to prove the dying
declaration Ex.P-14 and it is a valid piece of evidence and it is
admissible in evidence and the trial Court has rightly convicted
the appellant Janki Bai Patel for the offence under Section 302
of I.P.C. Therefore, the conviction and sentence of the appellant
Janki Bai Patel is well merited and is hereby affirmed for offence
under Section 302 of I.P.C. Similarly, the conviction of the
appellants Janki Bai Patel, Subhash Chand Patel and Khagraj
Patel for offence under Section 498-A of I.P.C. is hereby
affirmed, but considering the facts and circumstances of the
case and evidence available on record, the conviction of
appellants Subhash Chand Patel & Khagraj Patel are also
affirmed but while confirming their conviction of all three
12 (2019) 4 SCC 739
13 (2002) 2 SCC 426
appellants for offence under Section 498-A of I.P.C., their
sentence awarded to them for the offence under Section 498-A
of I.P.C. is reduced to the period already undergone by them.
37. The appellant Janki Bai Patel is reported to be on bail, her bail
bonds are forfeited and she is directed to surrender forthwith to
serve out the remaining jail sentence. Since the appellants
Subhash Chand Patel & Khagraj Patel are also on bail, they
need not surrender; however, their bail bonds shall remain in
operation for a period of 6 months in view of the provisions
contained in Section 437-A of Cr.P.C.
38. In view of the above, both the criminals appeals are partly
allowed to the extent indicated herein-above.
Sd/- Sd/-
(Sanjay K. Agrawal) (Rakesh Mohan Pandey)
Judge Judge
Aks
