Deepak Diwakar vs State Of Chhattisgarh
2026 Latest Caselaw 923 Chatt

Chattisgarh High Court

Deepak Diwakar vs State Of Chhattisgarh on 24 March, 2026

Author: Ramesh Sinha

Bench: Ramesh Sinha

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                                                                                    2026:CGHC:13927-DB
ROHIT
KUMAR
CHANDRA
                                                                                                         NAFR
Digitally signed
by ROHIT
KUMAR
CHANDRA
                                HIGH COURT OF CHHATTISGARH AT BILASPUR
                                                   CRA No. 1205 of 2021
                   1 - Deepak Diwakar S/o Munna @ Rajkumar Aged About 26 Years R/o.
                   Village Fulwari Kala, P.S. Lalpur, District Mungeli Chhattisgarh., District :
                   Mungeli, Chhattisgarh
                   2 - Munna @ Rajkumar S/o. Late Chaitu Ram Diwakar, Aged About 49
                   Years R/o. Village Fulwari Kala, P.S. Lalpur, District Mungeli
                   Chhattisgarh., District : Mungeli, Chhattisgarh
                   3 - Smt. Prabha Diwakar W/o Munna @ Rajkumar Aged About 45 Years
                   R/o. Village Fulwari Kala, P.S. Lalpur, District Mungeli Chhattisgarh.,
                   District : Mungeli, Chhattisgarh
                                                                                                ... Appellants
                                                              versus
                   State of Chhattisgarh Through Station House Officer, Lalpur, District
                   Mungeli (Chhattisgarh), District : Mungeli, Chhattisgarh
                                                                                              ... Respondent
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For Appellants : Ms. Vijay Laxmi Soni, Advocate For Respondent/State : Mr. Sourabh Sahu, Panel Lawyer

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Hon'ble Mr. Ramesh Sinha, Chief Justice and Hon'ble Mr. Ravindra Kumar Agrawal, Judge

Judgment on Board

Per Ramesh Sinha, CJ

24.03.2026

1. This criminal appeal is directed against the judgment of conviction

and order of sentence dated 24.09.2021 passed by the Sessions

Judge, Mungeli, District Mulgeli (C.G.) in Sessions Trial No.

39/2019, whereby learned trial Court has convicted the appellants

for offences under Sections 302 of the IPC and sentenced them to

undergo imprisonment for life and fine of Rs.2,000/- each, in

default of payment of fine to further undergo RI for one year to

each appellant.

2. The prosecution case, in brief, is that on 08.06.2019, the accused

allegedly made the deceased, Sama Diwakar, consume rat poison

on the pretext that she did not sell liquor and had brought

insufficient dowry. She was taken to the District Hospital, Mungeli

for treatment. The hospital informed the City Kotwali Police

Station, Mungeli vide Ex.P.15, pursuant to which treatment was

administered to Sama Diwakar. The concerned police station

recorded a complaint as Ex.P.16A, on the basis of which her

medical examination was conducted as per Ex.P.16. The police

also sought an opinion from the Medical Officer, Mungeli,

regarding whether the deceased was in a condition to give a

statement. In this regard, an intimation was recorded as per

Ex.P.30, and as per Ex.P.17, Dr. K.S. Kanwar (PW-10) opined that

Sama Diwakar was fit to give a statement, following which her

statement was recorded as per Ex.P.18.

3. The District Hospital, Mungeli referred Sama Diwakar to a higher

centre for treatment as per Ex.P.19; however, her family admitted

her to Mahima Hospital, Mungeli, where her medical examination

was conducted as per Ex.P.20 and Ex.P.21. Thereafter, she was

taken home by her father, Deshraj Dahariya (PW-1). Upon

deterioration of her condition, she was admitted to CIMS Hospital,

Bilaspur, where she died during treatment. The City Kotwali Police

Station, Bilaspur (CIMS Outpost), registered the inquest intimation

as per Ex.P.14 and issued a duty certificate as per Ex.P.4. The

inquest report was prepared as per Ex.P.3, and an application for

post-mortem examination was submitted. The post-mortem was

conducted at CIMS Hospital, Bilaspur as per Ex.P.22. Since the

incident occurred within the jurisdiction of Lalpur Police Station,

the intimation was transferred accordingly as per Ex.P.23. The

First Information Report was registered as per Ex.P.24. Dowry

articles were seized as per seizure memo Ex.P.25, and a

panchnama was prepared as per Ex.P.7. The spot map was

prepared as per Ex.P.1 and Ex.P.2. After completion of

investigation, a charge-sheet was filed before the Judicial

Magistrate First Class, Lormi, registered as Criminal Case No.

610/2019. As the offences were exclusively triable by the Court of

Sessions, the case was committed, and the accused were taken

into custody as per the surrender order dated 04.10.2019, leading

to registration of Sessions Case No. 39/2019.

4. Charges under Sections 304B and 302 of the IPC were framed

against the accused by the learned trial Court. The charges were

read over and explained to them, to which they pleaded not guilty

and claimed trial. During their examination under Section 313 of

the CrPC, the accused denied the prosecution allegations and

stated that the witnesses had deposed falsely due to enmity.

When called upon to enter defence under Section 233 of the

CrPC, the accused declined to examine any witness.

5. In support of its case, the prosecution examined Deshraj Dahariya

(PW-1), Pushpa Dahariya (PW-2), Bhola Bhaskar (PW-3),

Budhara Bai (PW-4), Shankar (PW-5), Manoj Singh Thakur (PW-

6), Abhishek Pahari (PW-7), Hemant Ahire (PW-8), Pushpendra

Kumar (PW-9), Dr. K.S. Kanwar (PW-10), Dr. S.K. Patil (PW-11),

Dr. Alka Minj (PW-12), Karuna Katle (PW-13), Salikram Rajput

(PW-14), Dr. R.K. Markam (PW-15), Mankaram Dhruv (PW-16),

Qadir Khan (PW-17), Yogesh Gupta (PW-18), and T.R. Patel

(PW-19).

6. The trial Court, after appreciating the oral and documentary

evidence available on record, by judgment dated 24.09.2021,

convicted and sentenced the appellants as mentioned in the

opening paragraph of this judgment. The said judgment is under

challenge in the present criminal appeal preferred under Section

374(2) of the CrPC by the appellants.

7. Learned counsel for the appellants submits that the impugned

judgment of conviction and sentence is illegal, perverse, and

based on improper appreciation of evidence. It is contended that

the prosecution case primarily rests upon the alleged dying

declaration of the deceased; however, the same has been

recorded by an Assistant Sub Inspector and not by any Executive

Magistrate. It is argued that recording of a dying declaration by a

police officer, without proper certification of fitness by a competent

medical officer and without following the safeguards prescribed

under law, renders the said dying declaration doubtful and

unreliable. Therefore, the conviction based on such a dying

declaration cannot be sustained in the eyes of law. It is further

submitted that the conviction is also based upon the FSL report

(Ex.-C/01), but the same has not been duly proved in accordance

with law. The prosecution has failed to examine the competent

expert or the person who prepared the FSL report to prove its

contents, authenticity, and correctness. In absence of proper proof

and admissibility of the FSL report, the same could not have been

relied upon by the learned trial Court for recording the conviction

of the appellants. Thus, the entire foundation of the prosecution

case becomes shaky and unreliable. It is, therefore, prayed that

the impugned judgment of conviction and sentence deserves to

be set aside and the appellants be acquitted of the charges

levelled against them.

8. Per contra, learned counsel for the State opposes the

submissions made on behalf of the appellants and submits that

the impugned judgment of conviction and sentence has been

passed by the learned trial Court after due and proper

appreciation of the oral and documentary evidence available on

record. He further submitted that the dying declaration of the

deceased cannot be doubted on the ground that it was recorded

by an Assistant Sub Inspector, as it was supported by medical

certification regarding the fitness of the deceased to give the

statement. Dr. K.S. Kanwar (PW-10), who examined the

deceased, specifically opined and certified that Sama Diwakar

was capable of giving a statement, and this certification forms part

of the record (Ex.P.17). The learned trial Court rightly considered

this certification while appreciating the evidentiary value of the

dying declaration. It is submitted that the law recognizes that a

dying declaration, if voluntarily made and supported by medical

certification regarding the deceased's capacity to understand and

communicate, is admissible even if recorded by a police officer. In

the present case, the certification by the medical officer removes

any doubt about the competency of the deceased to make a

statement, and the statement has been corroborated by other

evidence on record. Regarding the FSL report, it is reiterated by

learned State counsel that the report was duly exhibited and

forms corroborative evidence in support of the prosecution case.

The absence of examination of the officer who prepared the FSL

report does not affect its admissibility when considered along with

other corroborative material and oral evidence. He lastly submits

that the learned trial Court rightly relied upon the dying declaration

and other evidence, and the conviction and sentence of the

appellants are well-founded, as such, the appeal deserves to be

dismissed.

9. We have heard learned counsel for the parties and considered

their rival submissions made herein-above and also went through

the record with utmost circumspection.

10. The first question for consideration would be, whether the trial

Court was justified in holding that death of deceased Sama

Diwakar's occur under circumstances difference from normal ?

11. The trial Court, relying upon the statement of Dr. R.K. Markam

(PW-15), who has conducted postmortem over the body of

deceased Sama Diwakar, vide Ex.P/22, who has stated that on

internal examination, the deceased's head was normal. The brain

and spinal cord were congested and pale. There was

approximately one liter of pale fluid in the chest. The pleura,

larynx, and trachea, and both lungs were paroxysmal, congested,

and pale. The right chamber of the heart was filled with blood and

the left chamber was empty. The free fluid in the stomach was

yellow in colour. The membrane, intestinal membrane, mouth and

esophagus were congested. The outer part of the stomach was

yellowish. There was swelling and bleeding in the inner part of the

stomach. Blood clots were present. There was foul smell coming

from the stomach. There was digested matter in the small

intestine due to which the same smell was present. Rest of the

organs were yellowish. According to the family members, the

deceased was suffering from rat poison. After the postmortem of

the deceased, the viscera was preserved and the concerned

police personnel was consulted for viscera examination from FSL.

12. Witness Dr. R.K. Markam (PW15) stated that the cause of death

of the deceased was withheld. A death opinion could be given

only after reviewing the viscera report from the FSL. At the time of

the post-mortem, the period of death appeared to be between 12

hours. Their report is Ex.P.22, which bears his signature on the

aforementioned portion and Dr. Mrs. S. Mahajan's signature on

the aforementioned portions.

13. It has been observed by learned trial Court that the testimony of

Dr. R.K. Markam (P.W.15) has not been challenged by the

accused. Dr. R.K. Markam (P.W.15) is an expert witness. There is

no basis in the case to disbelieve his testimony. This witness

states that the deceased's death occurred within 12 hours of the

inquest. However, according to Dr. R.K. Markam (A.W.15), the

deceased's death was attributed to her family members that the

death was due to rat poison and hence, it is stated that the

opinion should be given after chemical examination of the viscera

of the deceased. In this regard, on perusal of the viscera report

Ex.C.1, it is mentioned that there was presence of Phosphorus

(Rat Poison) in the stomach, intestine, heart, lungs, liver, kidney,

spleen and blood of the deceased in exhibits ABC and D. In this

regard, the accused have not challenged the fact that the death of

the deceased was not due to rat poison, but instead, the

suggestion that the deceased consumed poison herself due to

distress has been presented in paragraph 13 of the cross-

examination of witness Deshraj Dahariya (PW-1). In such a

situation, it is clear that the death of the deceased was due to

consumption of rat poison, other than normal circumstances.

14. The said finding recorded by the trial Court is a finding of fact

based on evidence available on record, which is neither perverse

nor contrary to record. Even otherwise, it has not been seriously

disputed by the learned counsel for the appellant. We hereby

affirm the said finding.

15. The next question for consideration would be, whether the trial

Court has rightly held that the accused/ appellant, being husband

and relatives of the the deceased, intentionally or knowingly killed

the deceased Sama Diwaker by administering rat poison to her ?

16. There is no eyewitness in the case, and the prosecution's entire

case is based on circumstantial evidence. The court may convict

the accused even on the basis of circumstantial evidence, but it

must satisfy itself that the circumstances from which guilt can be

inferred have been proved by the unimpeachable evidence

adduced by the prosecution, and that all the circumstances, taken

together, are not only conclusive in nature but also complete a

chain, thereby unambiguously pointing to the guilt of the accused

alone, and are not amenable to any explanation inconsistent with

the theory of the accused's guilt.

17. In this case, it is undisputed that the deceased died from

consuming rat poison. The prosecution's case rests solely on the

fact that the deceased recorded a dying declaration after the

incident. It is well-established law that if the dying declaration is

credible, the Court can convict even in the absence of

corroboration.

18. At this stage, it would be appropriate to notice Section 32 (1) of

the Evidence Act which states as under: -

"32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant.--Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases:--

(1) when it relates to cause of death.--When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.

xxx xxx xxx"

19. Section 32(1) of the Evidence Act is famously referred to as the

"dying declaration" section, although the said phrase itself does

not find mention under the Evidence Act. Their Lordships of the

Supreme Court have considered the scope and ambit of Section

32of the Evidence Act, particularly, Section 32(1) on various

occasions including in the matter of Sharad Birdhichand Sarda

v. State of Maharashtra1 in which their Lordships have

summarised the principles enumerated in Section 32(1) of the

Evidence Act, including relating to "circumstances of the

transaction":

"21. Thus, from a review of the authorities mentioned above and the clear language of Section 32(1) of the Evidence Act, the following propositions emerge:-

(1) Section 32 is an exception to the rule of hearsay and makes admissible the statement of a person who dies, whether the death is a homicide or a suicide,provided the statement relates to the cause of death, or exhibits circumstances leading to the death. In this respect, as indicated above, the Indian Evidence Act, in view of the peculiar conditions of our society and the diverse nature and character of our people, has thought it necessary to widen the sphere of Section 32 to avoid injustice.

(2) The test of proximity cannot be too literally construed and practically reduced to a cut-and-dried formula of universal application so as to be confined in a straitjacket. Distance of time would depend or vary with the circumstances of each case. For instance, where death is a logical culmination of a continuous drama long in process and is, as it were, a finale of the story, the statement regarding each step directly connected with the end of the drama would be admissible because the entire

1 (1984) 4 SCC 116

statement would have to be read as an organic whole and not torn from the context. Sometimes statements relevant to or furnishing an immediate motive may also be admissible as being a part of the transaction of death. It is manifest that all these statements come to light only after the death of the deceased who speaks from death. For instance, where the death takes place within a very short time of the marriage or the distance of time is not spread over more than 3-4 months the statement may be admissible under Section 32.

(3) The second part of clause (1) of Section 32 is yet another exception to the rule that in criminal law the evidence of a person who was not being subjected to or given an opportunity of being cross-examined by the accused, would be valueless because the place of cross- examination is taken by the solemnity and sanctity of oath for the simple reason that a person on the verge of death is not likely to make a false statement unless there is strong evidence to show that the statement was secured either by prompting or tutoring.

(4) It may be important to note that Section 32does not speak of homicide alone but includes suicide also, hence all the circumstances which may be relevant to prove a case of homicide would be equally relevant to prove a case of suicide.

(5) Where the main evidence consists of statements and letters written by the deceased which are directly connected with or related to her death and which reveal a tell-tale story, the said statement would clearly fall within the four corners of Section 32 and, therefore,admissible. The distance of time alone in such cases would not make the statement irrelevant."

                          Sd/-                                         Sd/-
                (Ravindra Kumar Agrawal)                       (Ramesh Sinha)
                        Judge                                    Chief Justice




Chandra