Allowed

Putka @ Sahil Kumar @ Purendra Kumar v. State of Chhattisgarh

Chhattisgarh HC15 Sept 2023CRA/424/2022

Case brief

AI extract

What is this about?

Convictions for five murders and setting fire to a dwelling rested solely on a second dying declaration. The court found the declaration unreliable and the charges unproved beyond reasonable doubt, allowed the appeal, acquitted the appellant and directed conditional release.

What did the court decide?

Convictions and sentences set aside; appellant acquitted and ordered released forthwith unless required in another criminal case.

Putka @ Sahil Kumar @ Purendra Kumar Vs… — Murder and Culpable Homicide | Chhattisgarh HC (2023)

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AFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Judgment reserved on: 7.9.2023

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Judgment delivered on: 15.9.2023

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Criminal Appeal No.424 of 2022

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Putka @ Sahil Kumar @ Purendra Kumar, S/o. Late Nand Kumar, aged at present near about 23 years, R/o. Sweeper Colony, Siddharth Chowk, Tikrapara, District Raipur (Chhattisgarh)

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---- Appellant (In Jail)

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Versus

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State of Chhattisgarh, through Police Station City Kotwali, District Raipur, Chhattisgarh

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---- Respondent

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For Appellant: Mr.Vivek Mishra, Advocate For State/Respondent: Mr.Gagan Tiwari, Deputy Government Advocate

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H on'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri N.K.Chandravanshi, Judge

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C.A.V. Judgment

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Per Ramesh Sinha, C.J

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This criminal appeal is directed against the judgment of conviction and order of sentence dated 24.01.2022 passed by the 11^th Additional Sessions Judge, Raipur, District Raipur in Sessions Trial No.143/2019, whereby learned Additional Sessions Judge has convicted the appellant for offences under Sections 302 (five times) and 436 of the IPC and sentenced him to undergo imprisonment for life and fine of Rs.1000/- (five times), total Rs.5000/-, in default of payment of fine to further undergo RI for one year for each default

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and RI for ten years and fine of Rs.1000/-, in default of payment of fine to further undergo RI for one year.

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The prosecution case as unfolded during the course of trial is that the FIR of the incident was lodged on the allegations that on 9.3.2019 at about 4 a.m. at Sweeper Colony, Siddharth Chowk, Tikrapara, Raipur, house of Sujit Deep, S/o. Shambhu Deep catches fire and got completely burnt, sadly the entire family including two infant daughters, mother and wife died due to the incident. Sujit Deep had died on the spot itself and other family members died during their treatment in DKS Hospital, Raipur. FIR of the incident was lodged on the basis of 2^nd dying declaration (Ex.P-41) given by deceased Priya Deep on 15.03.2019. She was 98% burnt and subsequently died on 20.03.2019. She stated in her 2^nd dying declaration that two boys namely Lohara and Putka were smoking bidi in front of her hut, she saw them at night when she wake up for providing water to her children, she asked them not to do so, otherwise the fire will break out, however in reply they light up her dwelling by throwing a burning match stick on her hut. After disclosure of this fact, the FIR was lodged. As per the case of the prosecution, the incident took place around 3 a.m. during the intervening night of 08/09.03.2019 and soon after the incident, the huge fire broke up in the locality, due to which the locals rushed up towards the ablaze hut of the deceased in which deceased No.1 Sujeet Deep died on the spot, his mother Savita died on 10.03.2019 at 5.45 a.m. in DKS Hospital, his daughters died at hospital between 7-7.30 a.m. on 09.03.2019. Deceased No.5 who

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was the sole witness of the incident subsequently died after giving 2^nd dying declaration on 20.03.2009. Deceased No.1-Sujit Deep died on the spot. Merg intimation was recorded vide Ex.P-2. Inquest was conducted vide Ex.P-4 and postmortem was conducted vide Ex.P-30. Deceased No.2-Savita died in DKS Hospital on 10.03.2019 at 5.45 a.m. Merg intimation was recorded vide Ex.P-1. Inquest was conducted vide Ex.P-7 and postmortem was conducted vide Ex.P-8. Deceased No.3-Lakshita Deep died at hospital on 09.03.2009 at 7.30 a.m. MLC information was given vide Ex.P-14. Merg was conducted vide Ex.P-16 and postmortem was conducted vide Ex.P-36. Deceased No.4-Kabiya Deep died at hospital on 09.03.2019 at 7 a.m. MLC information was given vide Ex.P-15. Merg was conducted vide Ex.P-17 and postmortem was conducted vide Ex.P-35. Deceased No.5-Smt.Priya Deep died at hospital on 20.03.2019 at 6 a.m. Merg intimation was recorded vide Ex.P-24. MLC information was given vide Ex.P-25. Inquest was conducted vide Ex.P-28 and postmortem was conducted vide Ex.P31.

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The police after lodging the FIR has investigated the case and has collected evidence. During the investigation, FSL report from the Electricity Department was obtained. Postmortem reports were taken and the statements of the witnesses were recorded and thereafter the charge-sheet was submitted before the Judicial Magistrate having jurisdiction. The appellant abjured guilt and entered into defence.

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In order to bring home the offence, the prosecution examined as many as 23 witnesses and exhibited 55 documents Exs.P-1 to P-55. Statement of the accused / appellant was recorded under Section 313 of the CrPC in which he denied guilt. However, he examined none in his defence.

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The trial Court after appreciating oral and documentary evidence available on record, by its judgment dated 24.01.2022 convicted the appellant for offence under Sections 302 (five times) and 436 of the IPC and sentenced him as mentioned in the opening paragraph of this judgment which is sought to be challenged in this criminal appeal preferred under Section 374(2) of the CrPC by the appellant.

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Mr.Vivek Mishra, learned counsel for the appellant submits that the learned trial Court while passing the impugned judgment has failed to appreciate that the prosecution has not proved its case beyond reasonable doubts. The motive and intention which is the essential ingredient to prove an offence under Section 302 IPC has not been proved by the prosecution and are missing. There is no direct evidence against the appellant and the entire prosecution case is based on the dying declaration given by one of the deceased namely Priya Deep that too not supported by the certification of medical expert as to whether the deceased was in a fit state of mind to give such statement. Merely on the basis of dying declaration and in absence of any direct evidence, conviction of the appellant under Sections 302 and 436 IPC cannot be sustained. He

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further submits that in the present case, the investigation has started only due to dying declaration given by deceased Smt.Priya Deep. Prima facie the incident was reported by Mukund Deep (PW-2) to Salikram Verma (PW-6) as per Ex.P-2. It is very surprising on the said report, there is no whisper about the fact that has been stated later on in 161 CrPC statement by Mukund Deep (PW-2) that his deceased brother Sujit Deep has earlier told him regarding the accused persons smoking near his hut or deceased Priya Deep soon after the incident had described the incident to him regarding the involvement of the accused persons. The investigating officer T.R.Sahu (PW-17) has not recorded any statement of the witnesses before the lodging of the FIR. The FIR was lodged on 22.03.2019 i.e. after delay of 7 days of recording 2^nd dying declaration, that too with no explanation regarding the delay in lodging the FIR. He also submits that none of the witnesses have disclosed the names of the present appellant and one other accused before 22.03.2019. Not only this, witnesses have not even deposed regarding the suspicion against the present appellant as per his past conduct of smoking near the hut of the deceased persons. 1^st dying declaration was recorded on 09.03.2019, whereby the deceased has not stated anything about the incident and there is nothing in the 1^st dying declaration, which is pointing towards the appellant herein. 2^nd dying declaration was recorded on on 15.03.2019, in which the deceased has clearly taken the names of two accused persons, one being the appellant and another is juvenile in conflict with law. As such, conviction solely on the

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ground of dying declaration cannot be sustained that too when the dying declaration suffers from infirmity and is inconclusive. He contended that in the instant case, before dying declaration was recorded, there was not a single piece of evidence gathered by the investigating agency to show from where and what did the fire started. The dying declaration was taken twice and therefore is highly suspicious and untrustworthy. For believing in the oral dying declaration, it must be blemishless, voluntary and reliable. The evidence regarding dying declaration must have to be proved beyond reasonable doubt. In the instant case, the picture is clear from the statements of Ravi Vishwakarma (PW-13) and Shrijan Sonkar (PW-14) who are the Executive Magistrates and who have recorded the dying declaration of same person on different occasions. In the 1^st dying declaration, there is nothing alleged, however, in the 2^nd dying declaration, the allegations were made against the appellant and another. Executive Magistrate Shrijan Sonkar (PW-14) in his Court statement has clearly stated that he has been told about the names of the accused persons and contents which will be the dying declaration before the dying declaration was recorded by him. Dr.Ruby Singh (PW-16), although has certified that she was conscious to give statement, however, the doctor has not certified that she was mentally fit state of mind. Therefore, the judgment of conviction recorded and sentence awarded deserves to be set aside being contrary to the material available on record.

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Mr.Gagan Tiwari, learned Deputy Government Advocate appearing

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for the State/ respondent, would support the impugned judgment and submit that the prosecution has been able to bring home the offence and there is sufficient evidence available on record to hold him guilt and he has rightly been convicted by the Additional Sessions Judge. He would further submit that the dying declaration (Ex.P-41) is true and voluntary, it was give by deceased Priya Deep in a fit mental state, therefore, it is a reliable document and the appeal deserves to be dismissed.

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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.

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The appellant has solely been convicted on the basis of dying declaration Ex.P-41 and there is no other piece of evidence, no legal evidence much less oral and circumstantial evidence to convict the appellants except the aforesaid dying declaration. Therefore, it would be appropriate to consider the dying declaration recorded by Executive Magistrate Srijan Sonkar (PW-14).

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At this stage, it would be appropriate to notice Section 32 (1) of the Evidence Act which states as under: -

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“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,

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are themselves relevant facts in the following cases:—

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(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.

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xxx xxx xxx”

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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 Maharashtra 1 in which their Lordships have summarised the principles enumerated in Section 32(1) of the Evidence Act, including relating to “circumstances of the transaction”:

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“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:-

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(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

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1 (1984) 4 SCC 116

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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.

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(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.

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(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 crossexamination 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.

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(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.

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(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.”

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Thereafter, in the matter of Devinder alias Kala Ram and others

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v. State of Haryana 2, wherein the deceased, who sustained burn injuries while cooking meals on stove, had made a statement to the doctor, their Lordships of the Supreme Court held that statement of the deceased recorded by the doctor is relevant under Section 32of the Evidence Act and observed as under: -

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“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,face 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

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2 (2012) 10 SCC 763

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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 which 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.”

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In the matter of Purshottam Chopra and another v. State (Government of NCT of Delhi) 3, principles relating to recording of dying declaration and its admissibility and reliability were summed up in paragraph 21 as under: -

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“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:-

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

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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.

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21.4. When the eyewitnesses affirm that the deceased was not in a fit and conscious state to make the

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3 (2020) 11 SCC 489

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statement, the medical opinion cannot prevail.

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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.

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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 recording the dying declaration.

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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. 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.”

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The question for consideration is, whether the statement of the deceased recorded by Executive Magistrate Shrijan Sonkar (PW14) during the course of treatment is relevant under Section 32 of the Evidence Act or not?

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Section 32(1) of the Indian Evidence Act, 1872 makes it clear that when a statement, written or verbal, is made by a person as to the cause of her death, or as to any of the circumstances of the transaction which resulted in her death, in cases in which the

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cause of that person's death comes into question, such statement is relevant. The Supreme Court in Sharad Birdhichand Sarda (supra) 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 Birdhichand Sarda (supra) has further been followed by the Supreme Court in the matter of Kans Raj v. State of Punjab 4 reviewing the earlier authorities.

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Before considering the submission raised on behalf of the appellant, it would be appropriate to notice few facts which are apparent on the face of record.

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The 1^st dying declaration (Ex.P-39) was recorded on 09.03.2019 in presence of Ravi Vishwakarma (PW-13) who is Executive Magistrate in which deceased Priya Deep has stated that in Hindi “fiNs ls fdlh us eq>s vkx yxk;k gS”. Thereafter, the investigating authorities on being dissatisfied by this dying declaration have sent a requisition vide Ex.P-40 (page 194 of paper book) to the Executive Magistrate to record new dying declaration. A bare perusal of Ex.P-40 would reflect that the police authority sending a requisition have already mentioned the details of the disclosure supposed to be made by the deceased during her dying declaration i.e. names of the accused persons and the fact of the incident and it also contains the information regarding the earlier

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4 AIR 2000 SC 2324

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dying declaration and the police statement of deceased Priya Deep. Thereafter, 2^nd dying declaration (Ex.P-41) was recorded by Shrijan Sonkar (PW-14) by certification of Dr.Ruby Singh (PW-16).

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Since the entire investigation as well as the conviction is based upon the genuineness of 2^nd dying declaration. Thus, it has to be scrutinized under what circumstances such a dying declaration has been recorded. It can only be acted upon and form the basis of conviction only if it is found to be voluntary and genuine and it has been delivered when victim was in a fit state of mind to depose the same.

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Recently, the Supreme Court in the matter of Irfan @ Naka v. The State of Uttar Pradesh 5 has considered certain parameters to trust whether a dying declaration could be acted upon solely for securing conviction or not. It was observed as under:-

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“62.There is no hard and fast rule for determining when a dying declaration should be accepted; the duty of the Court is to decide this question in the facts and surrounding circumstances of the case and be fully convinced of the truthfulness of the same. Certain factors below reproduced can be considered to determine the same, however, they will only affect the weight of the dying declaration and not its admissibility: -

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(i) Whether the person making the statement was in expectation of death?

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(ii) Whether the dying declaration was made at the earliest opportunity? “Rule of First Opportunity”

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(iii) Whether there is any reasonable suspicion to believe

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5 2023 SCC OnLine SC 1060

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the dying declaration was put in the mouth of the dying person?

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(iv) Whether the dying declaration was a product of prompting, tutoring or leading at the instance of police or any interested party?

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(v) Whether the statement was not recorded properly?

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(vi) Whether, the dying declarant had opportunity to clearly observe the incident?

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(vii) Whether, the dying declaration has been consistent throughout?

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(viii) Whether, the dying declaration in itself is a manifestation / fiction of the dying person’s imagination of what he thinks transpired?

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(ix) Whether, the dying declaration was itself voluntary?

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(x) In case of multiple dying declarations, whether, the first one inspires truth and consistent with the other dying declaration?

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(xi) Whether, as per the injuries, it would have been impossible for the deceased to make a dying declaration?

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It is the duty of the prosecution to establish the charge against the accused beyond the reasonable doubt. The benefit of doubt must always go in favour of the accused. It is true that dying declaration is a substantive piece of evidence to be relied on provided it is proved that the same was voluntary and truthful and the victim was in a fit state of mind. It is just not enough for the court to say that the dying declaration is reliable as the accused is named in the dying declaration as the assailant.”

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The next question for consideration is whether the 2^nd dying

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declaration (Ex.P-41) which is alleged to be given by deceased Priya Deep before the Executive Magistrate Shrijan Sonkar (PW-14) is true and voluntary and it was given by the deceased in a fit mental state or it was tutored one.

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Shrijan Sonkar (PW-14) has stated that before taking the dying declaration he had obtained the certification of the doctor regarding the consciousness of Priya Deep, however, no separate certification regarding her fitness of state of mind in order to make dying declaration had been obtained. He has stated in paras-7, 8 & 9 of his evidence regarding the fact of knowing the names of accused persons before recording dying declaration and has stated that during recording dying declaration, he and Dr.Ruby Singh were only present. He has further stated that he has taken right leg toe impression of the victim after recording the declaration. However, on the contrary Dr.Ruby Singh (PW-16) has stated in paras-4, 6, 7, 9 & 10 of her evidence that she was not at all present with Shrijan Sonkar (PW-14) while recording the 2^nd dying declaration and some another person was present at that time. She has stated that Priya Deep was 98% burnt and was in deep pain and due to which, her entire body including her toes of both legs and thumbs were covered with plaster, therefore, under no occasion Shrijan Sonkar (PW-14) could have obtained toe impression. When the trial Court has asked a question to Dr.Ruby Singh (PW-16), in para-9, she has answered that Shrijan Sonkar (PW-14) has orally asked about the condition of victim before taking the 2^nd dying declaration and went inside and later on, after

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recording the dying declaration has asked her to sign the document made by him.

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Investigating Officer T.R.Sahu (PW-17) who called Shrijan Sonkar (PW-14) for recording the 2^nd dying declaration has stated in his Court statement that he was present along with the Executive Magistrate Shrijan Sonkar (PW-14) during recording of 2^nd dying declaration and has stated that 2^nd dying declaration was recorded in front of him. He has stated that victim Priya was 90% burnt. He has further stated that from 15.03.2019 to 20.03.2019 he has not conducted test identification parade in order to confirm the accused. In para-18 of his statement, he has stated that he has not seized the video recording of dying declaration, which is in sheer contradiction with the statement of Mukund Deep (PW-2) wherein in paras-08 & 18 he has stated the factum of recording dying declaration and supplying the copy of the same to the police officials.

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With regard to the absence of separate certificate regarding fit state of mind of victim Priya Deep before making dying declaration, relying on the judgment, the Supreme Court in the matter of Paparambaka Rosamma and others v. State of A.P. 6 has held as under:-

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“9. It is true that the medical officer Dr. K.Vishnupriya Devi (PW 10) at the end of the dying declaration had certified “patient is conscious while recording the statement”. It has come on record that the injured Smt. Venkata Ramana had sustained extensive burn injuries on her person. Dr.

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6 (1999) 7 SCC 695

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P.Koteswara Rao (PW 9) who performed the post-mortem stated that injured had sustained 90% burn injuries. In this case as stated earlier, the prosecution case solely rested on the dying declaration. It was, therefore, necessary for the prosecution to prove the dying declaration as being genuine, true and free from all doubts and it was recorded when the injured was in a fit state of mind. In our opinion, the certificate appended to the dying declaration at the end by Dr. Smt. K.Vishnupriya Devi (PW 10) did not comply with the requirement inasmuch as she has failed to certify that the injured was in a fit state of mind at the time of recording the dying declaration. The certificate of the said expert at the end only says that “patient is conscious while recording the statement”. In view of these material omissions, it would not be safe to accept the dying declaration (Ex.P-14) as true and genuine and as made when the injured was in a fit state of mind. From the judgments of the courts below, it appears that this aspect was not kept in mind and resultantly they erred in accepting the said dying declaration (Ex.P-14) as a true, genuine and as made when the injured was in a fit state of mind. In medical science two stages namely conscious and a fit state of mind are distinct and are not synonymous. One may be conscious but not necessarily in a fit state of mind. This distinction was overlooked by the courts below.”

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Applying the principle of law laid down by the Supreme Court in

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Paparambaka Rosamma (supra) to the facts of the present case, it is quite vivid that the 2^nd dying declaration suffers from infirmity where the victim has suffered more than 90% extensive deep burns and still there is no certificate of the doctor declaring that the victim was in a fit state of mind to give the dying declaration.

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Reverting to the facts of the present case, it is admitted position on record that there are two dying declarations. The 1^st dying declaration was recorded by Ravi Vishwakarma (PW-13) on 09.03.2019 (Ex.P-39) and the 2^nd dying declaration was recorded by Shrijan Sonkar (PW-14) on 15.03.2019 (Ex.P-41). Both the aforesaid dying declarations state different facts. First says someone has lodged fire from her back and the second says that she has witnessed that the incident was done by two accused persons. Admittedly, there is no certificate regarding the fit state of mind of the victim. The presence of the Investigating Officer T.R.Sahu while recording the 2^nd dying declaration and the delay of seven days in lodging the FIR after disclosure in the 2^nd dying declaration makes the prosecution story doubtful. Monu Qureshi (PW-19) who is the witness of the incident has stated in para 3 of his evidence that such an incident of fire break out had also taken place before this incident, which was not reported and managed by deceased Sujit Deep. Mahendra Nayak (PW-22) (father of deceased Priya Deep) who stayed with her daughter during her treatment till her death has stated in her evidence that three statements of her daughter was recorded and she has taken the names of three persons, however, in para 6 of he has stated that the accused and the deceased family members were having no previous enmity. He has further stated that till 20.03.2019 no witness has reported the incident against known or unknown person. In para 8 of his evidence, he has clearly stated that while at hospital from 09.03.2019 his daughter Priya Deep has not stated

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the incident to him. He has further stated that her daughter's body including toes and thumbs were covered with plaster. Dr.Snigdha Jain (PW-8) who conducted postmortem of Priya Deep has clearly stated in para 8 of her evidence that there was no sign of ink present either on her toes or thumb.

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Considering the facts relating to recording of dying declarations and after duly testing the authenticity on the basis of parameters laid down by the Supreme Court in the above-stated judgments, we are of the considered opinion that the trial Court while convicting the appellant for offence under Sections 302 (five times) and 436 of the IPC has committed grave legal error as the prosecution has failed to prove its beyond reasonable doubt.

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For the foregoing reasons, criminal appeal filed on behalf of appellant- Putka @ Sahil Kumar @ Purendra Kumar is allowed and his conviction & sentence under Sections 302 (five times) and 436 of the IPC are hereby set aside. The accused / appellant is acquitted of the said charges levelled against him. He is in jail. He shall be set at liberty forthwith if no longer required in any other criminal case.

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28 Keeping in view the provisions of Section 437-A of the CrPC, the accused-appellant, namely, Putka @ Sahil Kumar @ Purendra Kumar is directed to forthwith furnish a personal bond in terms of Form No. 45 prescribed in the Code of Criminal Procedure of sum of Rs.25,000/- with two reliable sureties in the like amount before the Court concerned which shall be effective for a period of six

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months along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the aforesaid appellant on receipt of notice thereof shall appear before the Hon’ble Supreme Court.

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29 The lower court record along with a copy of this judgment be sent back immediately to the trial court concerned for compliance and necessary action.

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Sd/- Sd/( N.K.Chandravanshi) (Ramesh Sinha) Judge Chief Justice

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Judgment Date : 15^th September, 2023

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Bablu/-

Putka @ Sahil Kumar @ Purendra Kumar v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Putka @ Sahil Kumar @ Purendra Kumar v. State of Chhattisgarh

Case brief

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What the court decided

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