Allowed

Jitendra Dhariya v. State Of Chhattisgarh

Chhattisgarh HC26 Jul 2023CRA/1340/2014

Case brief

AI extract

What is this about?

Two criminal appeals regarding life imprisonment convictions for murder were filed. The High Court rejected the prosecution case due to the inordinate delay in recording the eyewitness statement and reliance on unreliable oral dying declarations. The appellants were acquitted, and the impugned conviction was set aside.

What did the court decide?

Impugned conviction set aside; appellants acquitted; appellant in jail directed to be released forthwith.

Jitendra Dhariya Vs State Of Chhattisgarh — Murder and Culpable Homicide | Chhattisgarh HC (2023)

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CRA No. 81 of 2015 & CRA No. 1340 of 2014

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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CRA No. 81 of 2015

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Arun Kumar Kurre S/o Malikram, aged about 22 years, R/o Village-Telikot, P.S. Kharsiya, District Raigarh, Chhattisgarh.

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---- Appellant

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Versus

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State of Chhattisgarh, through Station Hosue Officer, Dabhra, District Janjgir-Champa, Chhattisgarh.

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---- Respondent

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CRA No. 1340 of 2014

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Jitendra Dhariya S/o Tatsam Prasad, aged about 27 years, R/o Village- Deragarh, P.S. Baradwar, District Janjgir Champa, Chhattisgarh.

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---- Appellant

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Versus

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State of Chhattisgarh through Station House Officer, Dabhra, District Janjgir Champa, Chhattisgarh.

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---- Respondent

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For Appellants :- Mr. Rishi Rahul Soni, Advocate. For State/Respondent :- Mr. Sameer Oraon, Government Advocate.

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Division Bench

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Hon'ble Shri Justice Sanjay K. Agrawal & Hon'ble Shri Justice Radhakishan Agrawal Judgment On Board (26.07.2023)

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CRA No. 81 of 2015 & CRA No. 1340 of 2014

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Sanjay K. Agrawal, J

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Since these two criminal appeals have arisen out of the same impugned judgment dated 25.11.2014 passed by the learned Second Additional Sessions Judge, Sakti, District JanjgirChampa, Chhattisgarh in Sessions Trial No. 222/2012, they have been clubbed together, heard together and are being decided by this common judgment.

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The sole appellant in Criminal Appeal No. 81 of 2015 namely Arun Kumar Kurre (A-1) and the sole appellant in Criminal Appeal No. 1340 of 2014 namely Jitendra Dhariya (A-2); both have preferred these two appeals under Section 374(2) of the CrPC calling in question the validity, legality and correctness of the impugned judgment whereby each of them has been convicted for offence punishable under Section 302/34 of the IPC and sentenced to undergo imprisonment for life and fine of ₹ 70,000/- (Seveny Thousand Rupees); in default of payment of fine, further rigorous imprisonment for two years.

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Case of the prosecution, in nutshell, is that on 30.03.2012 at about 7:30 pm at village Rambhatha near basti bridge, the appellants poured kerosene oil on the body of deceased Rameshwar Jangde and set him ablaze, by which he suffered severe burn injuries and died, thereby, committed the aforesaid offence.

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CRA No. 81 of 2015 & CRA No. 1340 of 2014

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It is further case of the prosecution that on 30.03.2012 at about 7:30 pm, when deceased Rameshwar was coming back to his house, in the mid way, near bridge some unknown persons came there and poured kerosene oil on him and set him ablaze and thereafter they ran away from the spot. With regard to the said incident, deceased Rameshwar Jangde himself has lodged the FIR (Ex.P/24) at Police Station Dabhara, proved by S.P. Singh (PW-14) that some unknown assailant has poured kerosene oil on him and set him ablaze by which he suffered severe burn injuries and the said incident has not been witnessed by any person and on cry being made, nearby persons came there and extinguished the fire. Thereafter, he was escorted to the Government Hospital, Dabhara from where he was referred to Government Hospital, Raigarh and from there he was escorted to Balaji Hospital, Raipur, where during the course of treatment, he died on 06.04.2012. Inquest proceedings were conducted vide Ex.P/2 and the dead body of the deceased was sent for postmortem. As per the postmortem report (Ex.P/25) conducted by Dr. Rajkumar Patel (PW-19), cause of death was due to cardiorespiratory failure as a result of burn and their complications.

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It is further case of the prosecution that immediately after the

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incident, deceased Rameshwar had given oral dying declaration

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CRA No. 81 of 2015 & CRA No. 1340 of 2014

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to his wife Bhanmati (PW-1) implicating the appellants herein. Furthermore, Fekuram (PW-6) is said to have seen the incident by which the appellants herein poured kerosene oil on deceased Remeshwar Jangde and set him ablaze. Similarly, Preetam Kumar Soni (PW-8) has proved that A-2 had extra marital relationship with Manisha, sister-in-law of Preetam Kumar Soni (PW-8), who was medically ill-treated by the deceased. The date of incident is 30.03.2012 and Rameshwar Jangde died on 06.04.2012 whereas, statement under Section 161 of CrPC of Bhanmati (PW-1) was recorded on 13.07.2012 similarly statements under Section 161 of CrPC of Fekuram (PW-6) and Preetam Kumar Soni (PW-8) were recorded on 19.08.2012 and 22.07.2012 respectively.

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After due investigation, appellants were charge-sheeted for the aforesaid offence and the case was committed to the Court of Sessions for trial in accordance with law. The appellants / accused persons abjured their guilt and entered into defence.

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In order to bring home the offence, prosecution has examined as many as 21 witnesses and exhibited 57 documents and defence in support of its case has examined 3 witnesses (DWs-1 to 3) and examined 8 documents (Exs.D/1 to 8C).

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CRA No. 81 of 2015 & CRA No. 1340 of 2014

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The learned trial Court after appreciating the oral and documentary evidence available on record, convicted the appellants / accused persons for the offence as mentioned in the opening paragraph of the judgment, against which these appeals have been preferred questioning the impugned judgment of conviction and order of sentence.

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Mr. Rishi Rahul Soni, learned counsel for the appellants, submits that appellants have falsely been implicated in crime in question and they have been convicted by recording a finding which is perverse to the record. He also submits that FIR was lodged by deceased Rameshwar Jangde himself but in the same, he has not named the appellants. It has been argued that Fekuram (PW6) has been cited as eye-witness to the incident but his statement under Section 161 of CrPC was recorded after four months of the incident. Likewise, the statements under Section 161 of CrPC of the witnesses Bhanmati (PW-1), Hemkumar Jangde (PW-4), Amritlal (PW-7) and Ramsai (PW-9) before whom oral dying declaration is alleged to have been made by the deceased have also been recorded belatedly. It has further been argued that the oral dying declaration is not reliable and the deceased was admitted for 7 days in the hospital and no dying declaration was recorded as he was not in fit condition, as such, the dying declaration recorded against the appellants is not true

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CRA No. 81 of 2015 & CRA No. 1340 of 2014

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and voluntary and therefore, there is no evidence on record to convict the appellants herein for the aforesaid offence. Lastly, it has been argued that the appellant-Jitendra Dhariya is in jail since 25.08.2012 and, as such, the impugned judgment deserves to be set aside and appellants deserve to be acquitted.

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On the other hand, Mr. Sameer Oraon, learned State counsel, supports the impugned judgment and submits that prosecution has been able to bring home the offence beyond reasonable doubt. He further submits that in view of the statements of Bhanmati (PW-1), Hemkumar Jangde (PW-4) Amritlal (PW-7) and Ramsai (PW-9) to whom oral dying declaration had given by deceased Rameshwar Jangde and in view of the testimony of Fekuram (PW-6) and Preetam Kumar Soni (PW-8), conviction of the appellants herein is well merited and therefore, the instant appeals deserve to be dismissed.

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

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The first question is as to whether the death of the deceased was homicidal in nature, which the learned trial Court has recorded the finding in affirmative on the basis of postmortem report (Ex.P/25) which is proved by Dr. Rajkumar Patel (PW-19)

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CRA No. 81 of 2015 & CRA No. 1340 of 2014

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which is the finding of fact based on evidence available on record, it is neither perverse nor contrary to the record and we hereby affirm the said finding.

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Now, the next question is, whether the appellants herein were the authors of the crime in question?

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Case of the prosecution is based on the following piece of evidence:-

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(i) testimony of Fekuram (PW-6) who has been cited as eyewitness.

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(ii) the oral dying declaration given by the deceased to Bhanmati (PW-1), Hemkumar Jangde (PW-4), Amritlal (PW-7) & Ramsai (PW-9).

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(iii) the motive was proved by Hemkumar Jangde (PW-8).

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We shall consider the aforesaid piece of evidence relied upon by the trial Court for conviction of the appellants herein one by one.

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Testimony of Fekuram (PW-6) who has been cited as eye- witness:- In his statement before the Court he has stated that on 30.03.2012, in the evening, at 7:30 pm he was going from Dabhra to his village Kondhar and deceased Rameshwar Jangde was coming from Rambhatha to his home, then A-2 along with

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CRA No. 81 of 2015 & CRA No. 1340 of 2014

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one Anup came from the back side of deceased Rameshwar Jangde and poured kerosene oil on him and set him ablaze and at that time it was becoming dark, and he has seen the appellants in the light of match stick. It would be appropriate to mention here that he had not named Arun (A-1) but he had stated one Anup who has not been named as the accused before the trial Court and furthermore, it would be appropriate to mention here that the date of incident is 30.03.2012 and Fekuram's (PW-6) statement under Section 161 was recorded on 19.08.2012, but there is no explanation offered by the prosecution as to why there is delay of more than 4 months in recording the statement of Fekuram (PW-6) and it appears to be unnatural because he did not report the matter to the police from 30.03.2012 to 19.08.2012. In the matter of Ganesh Bhavan

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Patel v. State of Maharashtra 1 , their Lordships of the Supreme Court have held that normally in a case where the commission of the crime is alleged to have been seen by witnesses who are easily available, a prudent investigator would give to the examination of such witnesses precedence over the evidence of other witnesses. Apart from this, deceased Rameshwar Jangde himself had lodged the FIR vide Ex.P/24 proved by S.P. Singh (PW-14) in which he has clearly stated that no one had seen the incident and when he made cry the persons residing nearby

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1 AIR 1979 SC 135

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CRA No. 81 of 2015 & CRA No. 1340 of 2014

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came and extinguished the fire and brought him to the hospital. He has not stated that Fekuram (PW-6) has seen the incident or he extinguished the fire. At 7:30 pm, it was dark night and he had seen A-2 in the light of match sticks and instead of naming Arun, he mentioned the name of Anup. As such, in view of the statement of deceased Rameshwar Jangde in the shape of oral dying declaration recorded in the FIR (Ex.P/24), the testimony of Fekuram (PW-6) cannot be accepted and it does not inspire confidence.

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The Supreme Court in the matter of Ganesh Bhavan Patel (supra) has held that inordinate delay in interrogation of witness during investigation is itself a sufficient ground for excluding his testimony in considering involvements of the appellants and observed as under: -

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“15. … Delay of a few hours, simpliciter, in recording the statements of eye-witnesses may not, by itself, amount to a serious infirmity in the prosecution case. But it may assume such a character if there are concomitant circumstances to suggest that the investigator was deliberately marking time with a view to decide about the shape to be given to the case and the eye-witnesses to be introduced. A catena of circumstances which lend such significance to this delay, exists in the instant case.

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In this connection, the second circumstance, which enhances the potentiality of this delay as a factor undermining the prosecution case, is the order of priority or sequence in which the investigating officer recorded the statements of witnesses. Normally, in a case where the commission of the crime is alleged to have been seen by witnesses who are easily available, a prudent investigator

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CRA No. 81 of 2015 & CRA No. 1340 of 2014

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would give to the examination of such witnesses precedence over the evidence of other witnesses. …

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Thus considered in the light of the surrounding circumstances, this inordinate delay in registration of the 'F.I.R.' and further delay in recording the statements of the material witnesses, casts a cloud of suspicion on the credibility of the entire warp and woof of the prosecution story.”

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Similarly, in the matter of State of Orissa v. Mr. Brahmananda

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Nanda 2, the Supreme Court has held that in a case where the sole eyewitness did not disclose the name of the murderer for a day and a half after the occurrence, the fact seriously affects his credibility, and observed as under: -

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“2. … It is indeed difficult to believe that this witness should not have disclosed the name of the respondent to the police or even to A.S.I. Madan Das and should have waited till the morning of June 15, 1969 for giving out the name of the respondent. This is a very serious infirmity which destroys the credibility of the evidence of this witness. The High Court has also given various other reasons for rejecting her testimony and most of these reasons are, in our opinion, valid and cogent. If the evidence of this witness is rejected as untrustworthy, nothing survives of the prosecution case.”

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19.In the matter of Jagjit Singh alias Jagga v. State of Punjab 3, their Lordships of the Supreme Court while dealing with the effect of delay in recording statement of the witness held as under: -

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“30. … The delay in examining her in the course of investigation also creates a serious doubt in the absence of any explanation for her late examination after three days, when admittedly she was the sole eyewitness who

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3 (2005) 3 SCC 689

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2 (1976) 4 SCC 288

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CRA No. 81 of 2015 & CRA No. 1340 of 2014

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was also injured in the course of the occurrence. We are, therefore, of the view that though she may have witnessed the occurrence, she did not know the appellant by name as she had no opportunity of knowing or seeing him earlier, and that she has involved the appellant at the instance of her father, who was the person who suggested the involvement of the appellant when her statement Ext. PW6/A was being recorded.”

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In the matter of Ramanand Yadav v. Prabhu Nath Jha and

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others 4, the Supreme Court while dealing with the effect of delayed examination of witnesses has held that the investigating officer would have to be asked specifically the reason for their delayed examination and unless the investigating officer is categorically asked as to why there was delay in examination of the witnesses, the defence cannot gain any advantage therefrom.

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In view of the above legal position, we hereby reject the testimony of Fekuram (PW-6) as the eye-witness that he has seen the incident by which the appellants herein poured kerosene oil on deceased and set him ablaze.

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Next piece of evidence is the oral dying declaration which deceased Rameshwar Jangde had allegedly given to Bhanmati (PW-1), Hemkumar Jangde (PW-4), Amritlal (PW-7) and Ramsai (PW-9) upon which the trial Court has placed reliance. Before considering the oral dying declaration, it would be appropriate to notice appropriate judgments in this regard.

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4 (2003) 12 SCC 606

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CRA No. 81 of 2015 & CRA No. 1340 of 2014

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In the matter of Darshana Devi v. State of Punjab 5, 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.

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Similarly, in the matter of Arun Bhanudas Pawar v. State of Maharashtra 6, 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 crossexamination.

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Furthermore, the Supreme Court, in the matter of Walkhom Yaima Singh v. State of Manipur 7, 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.

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The principle emerging out from the aforesaid decisions rendered by their Lordships of the Supreme Court is that oral

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5 1995 Supp (4) SCC 126

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6 (2008) 11 SCC 232

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7 (2011) 13 SCC 125

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CRA No. 81 of 2015 & CRA No. 1340 of 2014

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

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Returning to the facts of the case, it is quite vivid that the incident took place on 30.03.2012 at 7:30 pm and the deceased himself lodged the FIR vide Ex.P/24 proved by S.P. Singh (PW14) at 8:05 pm after 35 minutes in which he has clearly stated that unknown persons had poured kerosene oil on him and set him ablaze and the incident was not witnessed by any person, thereafter, Dr. N.P. Mishra (PW-10) examined the deceased and in his statement before the Court, while answering question No.5, he has clearly stated that deceased Rameshwar Jangde was not in a position to talk. Similarly, in the MLC information (Ex.P/48) dated 31.03.2012 proved by Dr. Devendra Naik (PW-16), it has clearly been recorded that unknown person had poured petrol and kerosene oil on the deceased and set him ablaze. At that time, deceased Rameshwar Jangde did not see any person and

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CRA No. 81 of 2015 & CRA No. 1340 of 2014

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did not name the appellants herein that they had poured kerosene oil on him and set him ablaze. In fact, the FIR (Ex.P/24) can be treated as oral dying declaration made by the deceased immediately after the incident and duly recorded FIR (Ex.P/24) proved by S.P. Singh (PW-14). However, vide Ex.P/50 (application for permission for recording the dying declaration) on 01.04.2012, Station House Officer Pandri, Mova, Raipur requested CMO, Balaji Hospital to record the dying declaration then it was certified on 01.04.2012 that deceased Rameshwar Jangde was not in fit physical state of mind to record the dying declaration whereas, the oral dying declaration is said to have been given by the deceased to Bhanmati (PW-1), Hemkumar Jangde (PW-4), Amritlal (PW-7) & Ramsai (PW-9) immediately after the incident. However Bhanmati (PW-1) made her statement under Section 161 of the CrPC on 13.07.2012 and the explanation given by the SHO Anandram (PW-18) that since she has lost her husband (deceased), therefore, there was delay in recording the statement. It has not been stated anywhere by him that she was unwell or admitted in the hospital by which she was unable to make statement, as such, the explanation given for the delay in recording statement of Bhanmati (PW-1) under Section 161 of CrPC cannot be accepted and more particularly the deceased himself lodged FIR and two medical documents (Ex.P/48 & Ex.P/50) are available on the record in which it has

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CRA No. 81 of 2015 & CRA No. 1340 of 2014

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been clearly stated that the deceased himself lodged the FIR and no one saw the incident and he did not name the appellants in those two documents though he had opportunity to disclose. As such, it would be unsafe to rely upon the oral dying declaration given by the deceased to Bhanmati (PW-1), Hemkumar Jangde (PW-4), Amritlal (PW-7) and Ramsai (PW-9) without corroboration, as there is no corroborative piece of evidence and in view of the oral dying declaration given by the deceased duly recorded in FIR (Ex.P/24) proved by S.P. Singh (PW-14) and he did not give any statement to Dr. Devenda Naik (PW-16) in the Balaji Hospital. In that view of the matter, we reject the oral dying declaration in the shape of Bhanmati (PW-1), Amritlal (PW-7) and Ramsai (PW-9).

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The last piece of evidence brought on record by the prosecution

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is that the motive has been proved as per the statement of Preetam Kumar Soni (PW-8). Preetam Kumar Soni (PW-8) has stated in his statement before the Court that he has seen that his sister-in-law Manisha had illicit relation with A-2 and the deceased had given medical treatment to her so that she may conceive boy child, but she did not conceive boy child and she ultimately, delivered a girl child, howver, that cannot be held to be motive, as Manisha could be a competent witness, but she has not been examined by the prosecution for the reasons best

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CRA No. 81 of 2015 & CRA No. 1340 of 2014

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known to the prosecution and even otherwise, motive itself cannot be made basis for conviction of offence that too under Section 302 of the IPC.

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In that view of the matter, we are of the opinion that the appellants are entitled for acquittal on the basis of benefit of doubt and accordingly, impugned conviction is set aside. Since appellant Arun Kumar Patel is already on bail, he need not surrender before the learned trial Court. However, his bail bond shall remain in force for a period of six months in view of the provision contained in Section 437-A of the CrPC. Appellant Jitendra Dhariay is reported to be in jail since 25.08.2012, we direct that he be released from the jail forthwith, if not required in any other matter.

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These criminal appeals are allowed .

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Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned and to the Superintendent of Jail where they are lodged and suffering jail sentence, forthwith for necessary information and action, if any.

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Sd/Sd/- (Sanjay K. Agrawal) (Radhakishan Agrawal) Judge Judge

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Ankit

Jitendra Dhariya v. State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Jitendra Dhariya v. State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

What the court decided

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