Allowed

Shiv Prasad and Anr. v. State Of Chhattisgarh

Chhattisgarh HC13 Jul 2023CRA/192/2015

Case brief

AI extract

What is this about?

Criminal appeal against conviction in a murder case. High Court of Chhattisgarh acquitted appellants, holding that the sole basis of conviction, the dying declaration, was unreliable due to lack of medical certification regarding the declarant's fitness to speak, failure to name accused specifically, and unreliability of oral statements.

What did the court decide?

Impugned judgment of conviction and sentence set aside; appellants acquitted on basis of benefit of doubt. Bail bond of appellant No.1 continues; appellant No.2 released forthwith.

Shiv Prasad and Anr. Vs State Of Chhattisgarh — Cheque Dishonour | Chhattisgarh HC (2023)

¶1

¶2

NAFR

¶3

HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Appeal No. 192 of 2015

¶4

1. Shiv Prasad, S/o. Kunwar Singh Sahu, Aged About 51 Years.

¶5

2. Rajendra, S/o. Shiv Prasad Sahu, Aged About 24 Years.

¶6

Both R/o. Village Damapur, O.P. Fastarpur, P.S. City Kotwali, District : Mungeli, Chhattisgarh

¶7

---Appellants

¶8

Versus

¶9

State Of Chhattisgarh, Through P.S. City Kotwali, District Mungeli, Chhattisgarh.

¶10

---Respondent

¶11

For Appellant :- Mr. Rishi Rahul Soni, Advocate For State/Respondent :- Mr. Ashish Tiwari, Govt. Advocate

¶12

Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Radhakishan Agrawal

¶13

Judgment On Board (13.07.2023)

¶14

Sanjay K. Agrawal, J.

¶15

1. This criminal appeal under Section 374(2) of Cr.P.C. is directed against the impugned judgment dated 30.01.2015, passed by the learned Additional Sessions Judge, Mungeli, in Sessions Trial No.25/2013, by which the appellants herein have been convicted for the offence under Section 302 read with Section 34 of Indian Penal Code and sentenced to life imprisonment with fine of Rs.500/-, in default of payment of fine, 1 month additional rigorous imprisonment.

¶16

¶17

2. Case of the prosecution, in brief, is that on 18.03.2013 at 9:00 a.m. at village Damapur, P.S. City Kotwali, Mungeli, two appellants herein along with absconded co-accused Kamla Bai and juvenile co-accused Yogesh poured kerosene oil on the body of Bamleshwari Sahu (now deceased), wife of appellant No.2 and set her ablaze; by which she suffered burn injuries and died on 20.03.2013 at CIMS Bilaspur; thereby the offence has been committed. Further case of the prosecution is that Bamleshwari was wife of appellant No.2 and appellant No.1 was father-in-law and Kamla Bai was mother-in-law and Yogesh was brother-in-law of the deceased and immediately after the incident, the deceased was taken to the local hospital at Mungeli from where she was referred to CIMS Bilaspur and on 18.03.2013 at 1:00 p.m. she was admitted in CIMS Bilaspur and on 19.03.2013 at 12:16 p.m. to 12.41 p.m., the dying declaration of the deceased was recorded by P.K.Thakur (PW-15). Thereafter, on 19.03.2013 at 2:00 O’clock, panchnama of the place of incident was prepared by S.K.Dubey (PW-13) and on 20.03.2013 at 8:45 a.m., the deceased succumbed to the burn injuries and died. Thereafter, merg was recorded on the same day vide Ex.P-17 and inquest was conducted vide Ex.P-1 by P.K.Thakur (PW-15) and post-mortem was conducted by Dr. R.K.Upadhyay (PW-12) and information of sudden and unnatural death was recorded vide Ex.P-16 by S.K.Dubey (PW-13). Seizure of kerosene and other articles were made vide Ex.P-10 and FIR was registered at Zero by S.K.Dubey (PW-13) at Police Out Post Fastarpur and thereafter, FIR No.132/13 was

¶18

¶19

registered by Bharat Chandrawanshi (PW-11) at Police StationCity Kotwali, Mungeli and spot map was prepared vide Ex.P-5 and the appellants were arrested vide Ex.P-6 & P-7. After due investigation, appellants were charge-sheeted for the aforesaid offence under Section 302 read with Section 34 of I.P.C. before the jurisdictional criminal court, which was ultimately committed to the Court of Sessions for hearing and disposal in accordance with law, in which the appellants abjured their guilt and entered into defence stating that they have not committed any offence and they have been falsely implicated.

¶20

3. In order to bring home the offence, prosecution examined as many as 16 witnesses and exhibited 19 documents and the appellants-accused in support of his defence has neither examined any witness nor exhibited any document.

¶21

4. The trial Court, after appreciation of oral and documentary evidence on record, convicted the appellants herein for the offence under Section 302 read with Section 34 of Indian Penal Code and sentenced to life imprisonment with fine of Rs.500/-, against which the present appeal has been preferred.

¶22

5. Mr. Rishi Rahul Soni, learned counsel for the appellants would submit that the trial Court is absolutely unjustified in convicting the appellants for offence under Section 302 read with Section 34 of I.P.C. as there is no legally admissible evidence available on record against the appellants. The dying declaration Ex.P-18 is not true and voluntary, as the deceased was not certified by any competent Doctor to be in a fit mental and physical state of

¶23

¶24

mind to make dying declaration and even the Executive Magistrate P.K.Thakur (PW-15) did not record satisfaction in dying declaration that she was in a fit state of mind to make the dying declaration. He further submits that the oral dying declaration allegedly made by the deceased to Sumitra Bai (PW-1), Jeetendra (PW-2), Sonsai (PW-3) & Balram (PW-4) are not reliable and, as such, the impugned judgment of conviction and order of sentence is liable to be set aside and the appeal deserves to be allowed.

¶25

6. Mr. Ashish Tiwari, learned State counsel would submit that in view of categorical statement made by the deceased in dying declaration (Ex.P-18) duly proved by the Executive Magistrate P.K.Thakur (PW-15) and the oral dying declaration made to Sumitra Bai (PW-1), Jeetendra (PW-2), Sonsai (PW-3) & Balram (PW-4), the trial Court is absolutely justified in convicting the appellants for the aforesaid offence punishable under Section 302 read with Section 34 of I.P.C. and, as such, the appeal deserves to be dismissed.

¶26

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

¶27

8. Dr. R.K.Upadhyay (PW-12) who has conducted post-mortem has opined the case of death due to deep extensive burn injuries with septicemia with respiratory failure and hypovolemic shock associated with cardio pulmonary collapse.

¶28

¶29

9. Now, the question for consideration is, whether the trial Court is justified in holding the appellants to be authors of the crime mainly on the basis of dying declaration (Ex.P-18) given by deceased Bamleshwari proved by P.K.Thakur (PW-15) ?

¶30

10. At this stage, it is appropriate to notice Section 32(1) of the Indian Evidence Act, 1872, which reads thus:

¶31

“ 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:—

¶32

(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.

¶33

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.

¶34

11. The general ground of admissibility of the evidence mentioned in Section 32(1) of the Evidence Act is that in the matter in question, no better evidence is to be had. The provisions in Section 32(1) constitute further exceptions to the rule which exclude hearsay. As a general rule, oral evidence must be direct (Section 60). The eight clauses of Section 32 may be regarded as exceptions to it, which are mainly based on two conditions: a necessity for the evidence and a circumstantial

¶35

¶36

guarantee of trustworthiness. Hearsay is excluded because it is considered not sufficiently trustworthy. It is rejected because it lacks the sanction of the tests applied to admissible evidence, namely, the oath and cross-examination. But where there are special circumstances which gives a guarantee of trustworthiness to the testimony, it is admitted even though it comes from a second-hand source. The Supreme Court emphasized on the principle enumerated in the famous legal maxim of the Law of Evidence, i.e., nemo moriturus praesumitur mentire which means a man will not meet his Maker with a lie in his mouth. Our Indian Law also recognizes this fact that “a dying man seldom lies” or in other words “truth sits upon the lips of a dying man”. The relevance or this very fact, is an exception to the rule of hearsay evidence.

¶37

12. 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 32 of 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”, which are as under: -

¶38

“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:-

¶39

1(1984) 4 SCC 116

¶40

¶41

(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.

¶42

(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 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.

¶43

(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.

¶44

(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.

¶45

(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

¶46

¶47

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.”

¶48

13. In the matter of Purshottam Chopra and another v. State (Government of NCT of Delhi)2 , principles relating to recording of dying declaration and its admissibility and reliability were summed up in paragraph 21 as under: -

¶49

“21. For what has been noticed hereinabove, some of the principles relating to recording of dying declaration and its admissibility and reliability could be usefully summed up as under:-

¶50

21.1. A dying declaration could be the sole basis of conviction even without corroboration, if it inspires confidence of the court.

¶51

21.2. The court should be satisfied that the declarant was in a fit state of mind at the time of making the statement; and that it was a voluntary statement, which was not the result of tutoring, prompting or imagination.

¶52

21.3. Where a dying declaration is suspicious or is suffering from any infirmity such as want of fit state of mind of the declarant or of like nature, it should not be acted upon without corroborative evidence.

¶53

21.4. When the eyewitnesses affirm that the deceased was not in a fit and conscious state to make the statement, the medical opinion cannot prevail.

¶54

21.5. The law does not provide as to who could record dying declaration nor there is any prescribed format or procedure for the same but the person recording dying declaration must be satisfied that the maker is in a fit state of mind and is capable of making the statement.

¶55

21.6. Although presence of a Magistrate is not absolutely necessary for recording of a dying declaration but to ensure authenticity and credibility, it is expected that a Magistrate be requested to record such dying declaration and/or attestation be obtained from other persons present at the time of

¶56

2 (2020) 11 SCC 489

¶57

¶58

recording the dying declaration.

¶59

21.7. As regards a burns case, the percentage and degree of burns would not, by itself, be decisive of the credibility of dying declaration; and the decisive factor would be the quality of evidence about the fit and conscious state of the declarant to make the statement.

¶60

21.8. If after careful scrutiny, the court finds the statement placed as dying declaration to be voluntary and also finds it coherent and consistent, there is no legal impediment in recording conviction on its basis even without corroboration.”

¶61

14. Where several dying declarations are made the test is whether the version of the deceased is proved to be false in respect of the integral part of the case. A dying declaration should satisfy all the necessary tests and one such important test is that if there are more than one dying declarations they should be consistent particularly in material particulars [See: Kamla v. State of Punjab 3.]

¶62

15. In the matter of Mohanlal Gangaram Gehani v. State of Maharashtra 4, their Lordships of the Supreme Court held that where there are more than one statement in the nature of dying declaration made by the accused, one first in time must be preferred.

¶63

16. In a recent judgment rendered by their Lordships of the Supreme Court in the matter of Makhan Singh v. State of Haryana 5 while considering the issue of multiple dying declarations, their Lordships have held as under:

¶64

“9. It could thus be seen that the Court is required to examine as to whether the dying declaration is true and reliable; as to whether it has been recorded

¶65

3 (1993) 1 SCC 1

¶66

4 AIR 1982 SC 839

¶67

5 AIR 2022 SC 3793 : 2022 SCC Online SC 1019

¶68

¶69

by a person at a time when the deceased was fit physically and mentally to make the declaration; as to whether it has been made under any tutoring/ duress/prompting. The dying declaration can be the sole basis for recording conviction and if it is found reliable and trustworthy, no corroboration is required. In case there are multiple dying declarations and there are inconsistencies between them, the dying declaration recorded by the higher officer like a Magistrate can be relied upon. However, this is with the condition that there is no circumstance giving rise to any suspicion about its truthfulness. In case there are circumstances wherein the declaration has not been found to be made voluntarily and is not supported by any other evidence, the Court is required to scrutinize the facts of an individual case very carefully and take a decision as to which of the declarations is worth reliance.

¶70

We therefore find that in the facts and circumstances of the present case, the first dying declaration (Ex. DO/C) will have to be considered to be more reliable and trustworthy as against the second one (Ex. PE). In any case, the benefit of doubt which has been given to the other accused by the trial court, ought to have been equally given to the present appellant when the evidence was totally identical against all the three accused.”

¶71

17. In addition to this, a Constitution Bench of the Supreme Court in the matter of Laxman v. State of Maharashtra6 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. Their Lordships held in paragraph 5 of the report as under: -

¶72

“5. The Court also in the aforesaid case relied upon the decision of this Court in Harjit Kaur v. State of Punjab⁷ wherein the Magistrate in his evidence had stated that he had ascertained from the doctor whether she was in a fit condition to make a statement and obtained an endorsement to that effect and merely because an endorsement was made not on the declaration but on the application

¶73

6(2002) 6 SCC 710

¶74

7(1999) 6 SCC 545

¶75

¶76

would not render the dying declaration suspicious in any manner. For the reasons already indicated earlier, we have no hesitation in coming to the conclusion that the observations of this Court in Paparambaka Rosamma v. State of A.P.⁸ (at SCC p. 701, para 8) to the effect that

¶77

"in the absence of a medical certification that the injured was in a fit state of mind at the time of making the declaration, it would be very much risky to accept the subjective satisfaction of a Magistrate who opined that the injured was in a fit state of mind at the time of making a declaration"

¶78

has been too broadly stated and is not the correct enunciation of law. It is indeed a hypertechnical view that the certification of the doctor was to the effect that the patient is conscious and there was no certification that the patient was in a fit state of mind specially when the Magistrate categorically stated in his evidence indicating the questions he had put to the patient and from the answers elicited was satisfied that the patient was in a fit state of mind whereafter he recorded the dying declaration. Therefore, the judgment of this court in Paparambaka Rosamma v. State of A.P.⁸ must be held to be not correctly decided and we affirm the law laid down by this Court in Koli Chunilal Savji v. State of Gujarat⁹ .

¶79

18. The Supreme Court in the matter of Jagbir Singh v. State (NCT of Delhi) 10 following the principle of law laid down in Laxman (supra) has clearly held 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 dying declaration must ensure that the patient was in a fit condition, both mentally and physically, to give the declaration.

¶80

19. Turning to the facts of the present case in light of the principles of law laid down by their Lordships of the Supreme Court in Laxman (supra) followed in Jagbir Singh (supra), it is quite

¶81

8 (1999) 7 SCC 695

¶82

9 (1999) 9 SCC 562

¶83

10 (2019) 8 SCC 779

¶84

¶85

vivid that the dying declaration was recorded at CIMS, Bilaspur by the Executive Magistrate- P.K.Thakur (PW-15) on 19.03.2013 at 12:16 p.m. vide Ex.P-18, pursuant to request made by Police Chowki, CIMS, Bilaspur by memo dated 18.03.2013. The said memo dated 18.03.2013 has not been made part of record, however, it is available with the original record of the Court, in which Dr. Balwant Singh had certified that the deceased is fit to give dying declaration. However, Dr. Balwant Singh, who had certified the deceased to be fit to give statement has not been examined on behalf of the prosecution before the Court for the reasons known to the prosecution. However, the dying declaration was recorded on 19.03.2013 at 12:16 p.m., as such, the dying declaration was recorded after 19 hours from the said certification. However, at the time of recording the dying declaration, there is no certification either by Doctor that the deceased Bamleshwari was in a fit mental and physical state of mind to make the dying declaration or even the Executive Magistrate- P.K.Thakur (PW-15), who was responsible officer did not think it fit to make a note in the dying declaration that at the time of recording the dying declaration, the deceased was in a fit mental and physical state of mind to make the dying declaration. Even in the statement before the court, he did not say that the deceased was in a fit physical and mental state of mind to make dying declaration. In fact, the memo dated 19.03.2013 was served to the concerned Sub Divisional Magistrate only on 19.03.2013 at 11:15 a.m. and immediately thereafter, the dying declaration was recorded and, as such, at

¶86

¶87

the time of recording the dying declaration neither the Doctor had certified that deceased was in a fit mental and physical condition to make the dying declaration nor the Executive Magistrate, who recorded the dying declaration, made a note on the dying declaration regarding her physical and mental condition and even he did not state before the Court that the deceased was in a fit mental and physical state of mind to make the dying declaration at the time of recording the dying declaration. More particularly, as per the post-mortem report (Ex.P-14), the deceased had suffered 100 % burn injury and as per the evidence available on record, she suffered burn injury in both the eyes and she was not able to open her both eyes. None certification of the Doctor at the time of making the dying declaration also becomes doubtful; more particularly, on 19.03.2013 at 12:16 p.m. when the dying declaration was recorded, the deceased was admittedly hospitalized at CIMS, Bilaspur, where she was undergoing treatment and in the hospital itself, the dying declaration was recorded. Furthermore, Dr. R.K.Upadhyay (PW-12), who has conducted the postmortem has clearly recorded the extensive burn injury. As such, in view of above evidence, it could not be established that she was in a fit physical and mental state of mind to make the dying declaration when the dying declaration recorded (Ex.P-18), as the Supreme Court in Laxman (supra) has held that absence of the certificate by a doctor is not fatal to act upon a dying declaration, but the person who records the dying declaration must ensure that the patient was in a fit condition, both mentally

¶88

¶89

and physically, to give the declaration, which is absolutely missing in the instant case though on account of lapse on the part of Investigating Officer as well as on the part of Executive Magistrate, who recorded the dying declaration, as the Executive Magistrate – P.K.Thakur (PW-15) did not take a pain to request the duty Doctors, as the Investigating Officer and Executive Magistrate both could have requested the Doctors present in the hospital to examine the deceased and certify the deceased to be in a fit physical and mental state of mind to make the dying declaration.

¶90

20. Furthermore, not only this, the dying declaration has been recorded in the question-answer form and last three questions of dying declaration are pertinent, which are reproduced herein :-

¶91

“iz”u%& ?kVuk ds le; ?kj ij dkSu Fkk\

¶92

mRrj%& ?kVuk ds le; ?kj ij esjs ifr] llqj ,oa lkl Fks vkSj nsoj Hkh FkkA iz”u%& ?kVuk dSls gqbZ\

¶93

mRrj%& eS ?kj ij Fkh rks esjs Åij esjs lkl us feV~Vh Mkyk vkSj nsoj ,oa esjs ifr bl ?kVuk ls lkfey FksA vkSj eq>s tyk fn;kA

¶94

iz”u%& ?kVuk ds fy;s fdls nks’kh ekurh gS\

¶95

mRRkj%& bl ?kVuk ds fy;s esjh lkl] llqj] ifr] nsoj lHkh ftEesnkj gSA vkSj eq>s dqN ugh dgukA”

¶96

21. A careful perusal of the aforesaid dying declaration would show that the deceased has named his mother-in-law (sas), brotherin-law (devar) and husband in one question and in other question, she has stated that her mother-in-law, father-in-law, husband and brother-in-law all are responsible. The deceased have not named any accused persons, only named with

¶97

¶98

reference to her relationship with the accused persons, but did not named specifically any accused persons and more particularly, in last portion she has only held her mother-in-law, father-in-law, husband and brother-in-law all are responsible, but no specific role / overt-act has been attributed to the father-inlaw, appellant No.1 herein.

¶99

22. The Supreme Court in the matter of Gopal Singh & Another v. The State of Madhya Pradesh & Another 11 has considered the effect of omission to mention names and addresses of accused persons and held that a dying declaration, which does not contain complete names and addresses of the persons charged with the offence, even though may help to establish their identity, is not of such a nature on which conviction can be based and it cannot be accepted without corroboration.

¶100

“8. ………….. It is settled law that a court is entitled to convict on the sole basis of a dying declaration if it is such that in the circumstances of the case it can be regarded as truthful. On the other hand if on account of an infirmity, it cannot be held to be entirely reliable, corroboration would be required. See : Kushal Rao v. State of Bombay 1958 SCR 552 = (AIR 1958 SC 22). In this case, it must be first remembered that though the names of the appellants' fathers were known to Modsingh and others who accompanied him to the Police Station, their fathers' names and present residence have not been mentioned. It is rather unusual for Police Officers not to enquire and record in the first information the full name and address of the persons complained against………...”

¶101

23. In the instant case also, the deceased have only referred the names of the two appellants herein and two other co-accused persons with reference to her relationship, but they have not

¶102

11 AIR 1972 SC 1557

¶103

¶104

been named specifically in the dying declaration and more particularly, no overt-act of the appellant No.1 has been mentioned and the appellant No.2 has been stated to be involved in the incident and held responsible for her death, but no specific role has been mentioned. Considering the fact that on account of non-certification by the Doctor and nonsatisfaction of the Executive Magistrate who recorded the dying declaration about the fit physical and mental status of the deceased at the time of recording the dying declaration on 19.03.2013 at 12:16 p.m. in CIMS Hospital, Bilaspur and considering the nature of dying declaration, as the appellants have only been referred by deceased with her relationship with them and not specifically named therein and following the principles of law laid down by their Lordships of the Supreme Court in the matter of Gopal Singh (supra), we reject the evidence led by prosecution based on dying declaration dated 19.03.2013 (Ex.P-18).

¶105

24. Now the next piece of evidence that has been brought by the prosecution is oral dying declaration allegedly given by the deceased to Sumitra Bai (PW-1) mother of the deceased, Jeetendra (PW-2) brother of the deceased, Sonsai (PW-3) & Balram (PW-4) maternal uncles of the deceased. All the oral dying declaration are allegedly been given by the deceased on the date of incident i.e. on 18.03.2013, but thereafter, the written dying declaration has been recorded on 19.03.2013 by the Executive Magistrate at 12:16 p.m. at CIMS Hospital Bilaspur, where she was undergoing treatment. The oral dying declaration

¶106

¶107

can be accepted, if it inspire confidence and it is true and voluntary. However, their Lordships of the Supreme Court in the matter of Walkhom Yaima Singh v. State of Manipur¹² has held that oral dying declaration is a week piece of evidence and should not be ordinarily accepted unless it is corroborated by other piece of evidence.

¶108

25. Considering the fact that Sumitra Bai (PW-1) mother of the deceased and Jeetendra (PW-2) brother of the deceased and further considering that deceased had already given the dying declaration and her dying declaration has been recorded on 19.03.2013 by the Executive Magistrate- P.K.Thakur (PW-15) and further considering the fact that Sumitra Bai (PW-1) and Jeetendra (PW-2) are the closed relative of the deceased and they were very much in pain on the death of their daughter/ sister, it would be natural tendency to implicate the husband and in-laws on account of sudden death by extensive burn injury of their dear. It would be unsafe to rely upon the oral dying declaration in presence of written dying declaration, which was recorded by the Executive Magistrate (PW-15) and that too in absence of further corroboration and accordingly, we reject the oral dying declaration allegedly given by the deceased to Sumitra Bai (PW-1), Jeetendra (PW-2), Sonsai (PW-3) & Balram (PW-4) and except that there is no other piece of evidence to base the conviction of the appellants herein and accordingly, the impugned judgment of conviction and order of sentence is hereby set aside. The appellants are entitled for

¶109

12 (2011) 13 SCC 125

¶110

¶111

acquittal on the basis of benefit of doubt. Accordingly, the impugned judgment of conviction and sentences are hereby set aside.

¶112

26. The appellant No.1 is already on bail, he need not surrender; however, his 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. The appellant No.2 be released forthwith, if his detention is not required in any other case.

¶113

27. Accordingly, this criminal appeal stands allowed.

¶114

28. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned for necessary information and action, if any. A certified copy of the judgment may also be sent to the concerned Jail Superintendent forthwith wherein the appellant No.2 is suffering the jail sentence.

¶115

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

¶116

Ashok

Shiv Prasad and Anr. v. State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Shiv Prasad and Anr. v. State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Somaru Kerketta Vs State Of Chhattisgarh

Karan Yadav Vs State Of Chhattisgarh

Jila Bhaskar Vs State of Chhattisgarh

Dr. Navneet Sonwani Vs Devesh Singh Thakur

Shivdayal Bhariya Vs State Of Chhattisgarh

Rajkumar Manjhwar Vs State Of Chhattisgarh