Allowed

Gudda @ Ravi Shankar Pandey v. State of Chhattisgarh

Chhattisgarh HC13 Oct 2022CRA/148/2012

Case brief

AI extract

What is this about?

High Court allowed criminal appeal against life imprisonment conviction for murder by burning. Court acquitted appellant holding that death was not proved to be homicidal, written dying declaration did not name appellant, alleged oral dying declaration was unreliable due to delay, and confession was inadmissible under Section 25 CrPC.

What did the court decide?

Impugned judgment convicting appellant under Section 302 IPC set aside; appellant acquitted; bail bonds remain in force for six months.

Gudda @ Ravi Shankar Pandey Vs State of… — Murder and Culpable Homicide | Chhattisgarh HC (2022)

¶1

¶2

AFR

¶3

HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Appeal No. 148 of 2012

¶4

Gudda @ Ravishankar Panday S/o Tulsi Ram Panday, Aged about 22 years, R/o Village Tengni, Police Station Patna, Distt. Koriya, Chhattisgarh.

¶5

---Appellant

¶6

Versus

¶7

State of Chhattisgarh through District Magistrate, Distt. Koriya, Chhattisgarh.

¶8

---Respondent

¶9

For Appellant : Mr. Mahendra Dubey, Advocate For State : Mr. Sudeep Verma, Dy. G.A. and Mr. Soumya Rai, P.L.

¶10

Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Deepak Kumar Tiwari Judgment on Board 13/10/2022

¶11

Sanjay K. Agrawal, J.

¶12

This criminal appeal under Section 374(2) of CrPC has been

¶13

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

¶14

¶15

sentenced to undergo imprisonment for life with fine of Rs. 1000/- and in default of payment of fine additional R.I. for three months.

¶16

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.

¶17

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

¶18

¶19

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

¶20

¶21

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.

¶22

In order to bring home the offence, prosecution examined as

¶23

many as 53 witnesses and brought on record 53

¶24

¶25

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.

¶26

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.

¶27

Mr. Mahendra Dubey, learned counsel appearing for the appellant, would make the following submissions :-

¶28

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.

¶29

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

¶30

¶31

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.

¶32

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.

¶33

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.

¶34

¶35

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.

¶36

We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection.

¶37

In the instant appeal, the following two questions arise for consideration :-

¶38

i) Whether the death of deceased Smt. Prabha Pandey was homicidal in nature ?

¶39

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 ?

¶40

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.

¶41

¶42

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.

¶43

Dying declaration of the deceased vide Exhibits D/2 and D/2A

¶44

Admittedly, deceased Smt. Prabha Pandey suffered burn

¶45

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

¶46

¶47

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.

¶48

Pursuant thereof, dying declaration of the deceased was

¶49

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

¶50

¶51

deceased wherein she clearly stated that some unknown person poured kerosene oil over her and put her on fire.

¶52

13. On the next day, i.e. 09/04/2005, the deceased was

¶53

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 crossexamination, 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.

¶54

14. The question for consideration is, whether the dying

¶55

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),

¶56

¶57

respectively, during the course of the treatment would be relevant under Section 32 of the Evidence Act ?

¶58

15. Section 32(1) of the Indian Evidence Act, 1872 makes it

¶59

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 Punjab 2 reviewing the earlier authorities. In Sharad Birdichand Sarda (supra), following propositions have been laid :-

¶60

“(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,

¶61

1 AIR 1984 SC 1622

¶62

2 AIR 2000 SC 2324

¶63

¶64

has thought it necessary to widen the sphere of Section 32 to avoid injustice.

¶65

(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.

¶66

(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.

¶67

(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.”

¶68

16. Thereafter, in the matter of Devinder alias Kala Ram and

¶69

others v. State of Haryana 3, wherein the deceased, who

¶70

3 (2012) 10 SCC 763

¶71

¶72

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 :-

¶73

“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.”

¶74

Reverting to the facts of the present case in light of the

¶75

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

¶76

¶77

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

¶78

¶79

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.

¶80

Oral dying declaration

¶81

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.

¶82

It is well-settled law that oral dying declaration is a weak kind of evidence. In the matter of Darshana Devi v. State of Punjab 4, 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.

¶83

4 1995 Supp (4) SCC 126

¶84

¶85

Similarly, in the matter of Arun Bhanudas Pawar v. State

¶86

of Maharashtra 5, 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.

¶87

21. Furthermore, the Supreme Court, in the matter of Walkhom

¶88

Yaima Singh v. State of Manipur 6, 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.

¶89

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

¶90

5 (2008) 11 SCC 232

¶91

6 (2011) 13 SCC 125

¶92

¶93

for the Court to record conviction on the solitary evidence of such oral dying declaration.

¶94

23. Reverting to the facts of the present case in light of the

¶95

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.

¶96

¶97

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.

¶98

¶99

Panchnama statement of the appellant vide Ex. P/2

¶100

Lastly, the trial Court has relied upon Ex. P/2 as one of the

¶101

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.

¶102

Section 25 of the Indian Evidence Act, 1872 provides that

¶103

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 Narcotics 7).

¶104

Since Ex. P/2 i.e. panchnama statement of the appellant

¶105

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

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.

¶110

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.

¶111

¶112