Raju Rampuri @ Raju Vs State of Chhattisgarh

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Page 1 of 17 IN Criminal Appeal No.519 of 2018

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Criminal Appeal No. 519 of 20 18

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[Arising out of judgment dated 06.03.2018, passed in Sessions Case No.05 of 2015 (State of Chhattisgarh v. Raju Rampuri @ Raju) by the 2^nd Additional Judge to the Court of Additional Sessions Judge, Ramanujganj, District Balrampur (C.G.)]

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Raju Rampuri @ Raju, Son of Sri Madhupuri, aged about 27 years, Occupation- Driver, Resident of Village Ward No.03, Jailpara, Police Station Ramanujganj, District BalrampurRamanujganj (Chhattisgarh).

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---- Appellant (In Jail)

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Versus

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State of Chhattisgarh, through Station House Officer, Police Station Ramanujganj, District Balrampur-Ramanujganj (Chhattisgarh)

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---- Respondent

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--------------------------------------------------------------------------------For Appellant : Mr. Arun Shukla, Advocate For Respondent : Mr. HAPS Bhatiya, Panel Lawyer

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Division Bench

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Hon'ble Shri Justice Sanjay K. Agrawal and Hon'ble Shri Justice Sanjay Kumar Jaiswal

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Judgment on Board (24.07.2024)

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Sanjay K. Agrawal, J

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(1) In this criminal appeal filed under Section 374(2) of Cr.P.C., the accused-appellant herein is calling in question the legality, validity and correctness of the impugned judgment of conviction and order of sentence dated 06.03.2018, passed in Sessions Case No.05 of 2015 (State of Chhattisgarh v. Raju Rampuri @ Raju) by the 2^nd Additional Judge to the Court of Additional Sessions Judge, Ramanujganj, District Balrampur (C.G.), whereby he has been convicted for offence under Section 302 of IPC and

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sentenced to undergo imprisonment for life with fine of Rs.40,000/- and, in default of payment of fine, sentenced to undergo additional rigorous imprisonment for 01 year.

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(2) The case of the prosecution, in a nut-shell, is that on 26.11.2014, at about 09:00 PM, at Ward No.01, Ramanujganj, the accused-appellant herein, with the intent to kill one Smt. Rajkumari (hereinafter referred to as the “deceased”) poured kerosene oil over her body and set her ablaze, due to which, she suffered deep burn injuries to the extent of 80-90% and died during the course of her treatment in the hospital and, thereby, said to have committed the aforesaid offences.

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(3) It is further case of the prosecution that immediately after the incident, the deceased was escorted to CHC, Ramanujganj for treatment, whereby she was medically examined by Dr. Snehlata Tirkey (PW-04) and, as per her MLC report (Ex.P/04) it has been opined that the deceased suffered burn injuries to the extent of 80%. Further, on the same day, at about 10:30 PM, deceased’s dying declaration was recorded by Dr. Snehlata Tirkey (PW-04) vide Ex.P/05, in which, she clearly implicated the appellant herein to be the author of the instant crime. On the basis of which, dehati nalsi (Ex.P/11) and FIR (Ex.P/12) were registered by the police against the appellant and wheels of investigation started running, in which, nazari naksha was prepared vide Ex.P/02. Summon under Section 175 of CrPC were sent vide

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Ex.P/07 and inquest proceedings were conducted vide Ex.P/08. After the death of the deceased, merg intimation (Ex.P/09) was also recorded. The dead-body of the deceased was sent for postmortem examination, which was conducted by Dr. Ramesh Kumar (PW-10) and, as per PM report (Ex.P/14), it has been opined that the cause of death of the deceased is shock due to burn injuries (90%). The accused-appellant were arrested vide Ex.P/15. Certain articles were seized from the spot vide Ex.P/01 but same were not sent for chemical examination for the reasons best known to the prosecution. Thereafter, statements of witnesses were recorded and, after due investigation, the police filed charge-sheet against the accused/appellant in the competent Court of criminal jurisdiction and, ultimately, the case was committed to the Court of Sessions for hearing and trial in accordance with law, in which, the appellant/accused abjured his guilt and entered into defence by stating that he is innocent and has been falsely implicated.

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(4) The prosecution in order to prove its case examined as many as 10 witnesses and exhibited 16 documents, whereas the appellant-accused in support of his defence, though not examined witness, but exhibited 01 document.

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(5) The learned trial Court after appreciating the oral and documentary evidence available on record, proceeded to convict the appellant herein for offence under Section 302 of IPC and

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sentenced him as mentioned herein-above, against which this appeal has been preferred by the appellant-accused questioning the impugned judgment of conviction and order of sentence.

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(6) Mr. Arun Shukla, learned counsel appearing for the appellant submits that the learned trial Court is absolutely unjustified in convicting the appellant for offence under Section 302 of IPC, as the prosecution has failed to prove the said offence beyond reasonable doubt. He further submits that there is no evidence available on record to connect the appellant herein with the offence in question, except the dying declaration (Ex.P/05). The statement made by the deceased while recording the said dying declaration (Ex.P/05) cannot be relied upon for the reason that before recording the said dying declaration the deceased was administered with pain killer injection, therefore, chances of the deceased to be under delusion cannot be ruled out. Further, the testimonies of two eye-witnesses, namely, Sonu Nagesiya (PW-05) and Abhishek (PW-07) cannot be relied upon as they have not seen the incident. Even otherwise, Sonu Nagesiya (PW-05) had only seen the appellant absconding from the house where the deceased was residing, which is, though relevant fact under Section 08 of the Indian Evidence Act, 1872 (for short the “IE Act”), but cannot form sole basis to convict the appellant for the offence of murder of the deceased. Hence, the present appeal deserves to be allowed and the appellant is liable to be acquitted

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of the said charge on the basis of benefit of doubt.

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(7) Per-contra , learned State counsel supported the impugned judgment of conviction and order of sentence and submits that the prosecution has proved the offence beyond reasonable doubt by leading evidence of clinching nature. He further submits that in view of dying declaration (Ex.P/05), wherein the deceased has clearly stated the name of the appellant herein to be the author of the crime coupled with other evidence available on record, the conviction and sentence passed by the learned trial Court against the appellant is well merited and, therefore, present appeal deserves to be dismissed.

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

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(9) Now the questions for consideration would be whether the death of the deceased was homicidal in nature and whether the appellant is the author of the crime, which we will consider together considering the nature of evidence brought on record.

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(10) In the instant matter, the case of the prosecution is mainly based on dying declaration (Ex.P/05), therefore, it would be appropriate to notice the principles governing the dying declaration. Firstly, it is relevant to notice Section 32(1) of the Indian Evidence Act, 1872, which reads thus:

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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, 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.

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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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(11) The general ground of admissibility of the evidence mentioned in Section 32(1) 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 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-

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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 of this very fact, is an exception to the rule of hearsay evidence.

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(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 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 (1984) 4 SCC 116

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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 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-anddried 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 crossexamined by the accused, would be valueless because the place of cross-examination is taken by the solemnity and sanctity of oath for the simple

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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 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.

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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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(13) 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 his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question, such statement is relevant. The Supreme Court in 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

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of Punjab 2 reviewing the earlier authorities.

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(14) Thereafter, in the matter of Devinder alias Kala Ram and others v. State of Haryana 3, 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 32 of 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 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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2 AIR 2000 SC 2324

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3 (2012) 10 SCC 763

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(15) In the matter of Purshottam Chopra and another v. State (Government of NCT of Delhi) 4, 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.

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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 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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4 (2020) 11 SCC 489

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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.

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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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(16) Recently, in the matter of Irfan @ Naka v. State of Uttar Pradesh5 the Supreme Court has held that the 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 and observed in Para-63 as under:

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“ 63. 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

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5 2023 SCC Online SC 1060

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declaration is reliable as the accused is named in the dying declaration as the assailant.”

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(17) Now, reverting to the facts of the present case in light of the aforesaid principles of law laid down by their Lordships of the Supreme Court in the above-mentioned judgments, it is quite vivid that dying declaration (Ex.P/05) has been recorded by Dr. Snehlata Tirkey (PW-04), the medical officer/doctor on duty at the relevant point of time, wherein the deceased has implicated the appellant herein to be the author of the crime in question. However, Dr. Snehlata Tirkey (PW-04) in her statement before the Court has stated that before recording the said dying declaration (Ex.P/05), the deceased was administered with a pain killer injection, namely, Diclofenac (wrongly mentioned as Ditrofenac in the statement). In this regard, the decision of the Supreme Court in the matter of Jayamma and another v. State of Karnataka 6 would be noticed here profitably, wherein their Lordships considered the case of Chacko v. State of Kerala 7 and held as under: -

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"14.2. In Chacko v. State of Kerala⁶ , this Court declined to accept the prosecution case based on the dying declaration where the deceased was about 70 years old and had suffered 80 per cent burns. It was held that it would be difficult to accept that the injured could make a detailed dying declaration after a lapse of about 8 to 9 hours of the burning, giving minute details as to the motive

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6 (2021) 6 SCC 213

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7 (2003) 1 SCC 112, paras 3 and 4

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and the manner in which he had suffered the injuries. That was of course a case where there was no certification by the doctor regarding the mental and physical condition of the deceased to make dying declaration. Nevertheless, this Court opined that the manner in which the incident was recorded in the dying declaration created grave doubts to the genuineness of the document. The Court went on to opine that even though the doctor therein had recorded “ patient conscious, talking ” in the wound certificate, that fact by itself would not further the case of the prosecution as to the condition of the patient making the dying declaration, nor would the oral evidence of the doctor or the investigating officer, made before the court for the first time, in any manner improve the prosecution case.”

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Their Lordships further considered the matter of Surinder Kumar v. State of Haryana 8 and held in paragraphs 16 and

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17 as under: -

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“16. We may also take note of the decision of this Court in Surinder Kumar⁷ . In the said case, the victim was admitted in hospital with burn injuries and her dying declaration was recorded by an Executive Magistrate. This Court, first doubted whether the victim could put a thumb impression on the purported dying declaration when she had suffered 95-97% burn injuries. Thereafter, it was noted that “ at the time of recording the statement of the deceased … no endorsement of the doctor was made about her position to make such statement ”, and only after the recording of the statement did the doctor state that the patient was conscious while answering the questions, and was “ fit to give statement ”. This Court lastly noticed that before the alleged dying declaration was recorded, the victim in the course of her treatment had been

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8 (2011) 10 SCC 173, paras 25, 26 and 28

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administered Fortwin and Pethidine injections, and therefore she could not have possessed normal alertness. It was hence held that although there is neither a rule of law nor of prudence that the dying declaration cannot be acted upon without corroboration, the Court must nonetheless be satisfied that the dying declaration is true and voluntary, and only then could it be the sole basis for conviction without corroboration.

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Consistent with the cited principles, this Court refused to uphold the conviction in Sampat Babso Kale v. State of Maharashtra⁹ . The dying declaration in that case was made by a victim who had suffered 98% burn injuries, and the statement was recorded after the victim was injected with painkillers. This Court adopted a cautious approach, and opined that there were serious doubts as to whether the victim was in a fit state of mind to make the statement. Given the extent of burn injuries, it was observed that the victim must have been in great agony, and once a sedative had been injected, the possibility of her being in a state of delusion could not be completely ruled out. Further, it was specifically noted that: (SCC p. 744, para 14)

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“14. … the endorsement made by the doctor that the victim was in a fit state of mind to make the statement has been made not before the statement but after the statement was recorded. Normally it should be the other way around.”

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(emphasis supplied)

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(18) Bearing in mind the above-stated principle of law and following the medical effect of administration of painkillers, it can safely be said that painkillers were bound to create drowsiness

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and usually arrest the mental alertness and it was given as the 9 (2019) 4 SCC 739, paras 14 and 16

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deceased was in great agony and pain. Therefore, in light of the decision of the Supreme Court in Sampat Babso Kale v. State of Maharashtra10 [Para-14& 16], followed in Jayamma (supra), the possibility of the deceased being in state of delusion could not be completely ruled out due to drowsiness. Therefore, in absence of any evidence of corroboration, it would be unsafe and risky to rely upon the dying declaration (Ex.P/05) to convict the appellant for offence under Section 302 of the IPC. We hereby hold accordingly.

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(19) Furthermore, in shape of corroboration, the learned trial Court has relied upon the statements of eye-witnesses, namely, Sonu Nagesiya (PW-05) and Abhishek (PW-07). However, Abhishek (PW-07) during his cross-examination has clearly stated that he has not seen the appellant herein causing burn injuries to the deceased, therefore, the testimony of Abhishek (PW-07) is of no help to the prosecution and cannot be relied upon to convict the appellant herein. So far as statement of Sonu Nagesiya (PW05) is concerned, he has stated that he has only seen the appellant absconding from the spot. However, appellant absconding from the spot is a relevant fact under Section 08 of IE Act, but in absence of any further corroboration, the same cannot form basis to record his conviction (See: Subramanya v. State of Karnataka11) . We hereby hold accordingly.

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(20) Accordingly, the learned trial Court has committed grave 10 (2019) 4 SCC 739, paras 14 and 16

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11 2022 SCC Online SC 1400

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legal error in convicting the appellant herein for the offence under Section 302 of IPC and, for the reasons stated herein-above, we are unable to uphold the conviction and sentence of the appellant, as awarded to him by the learned trial Court, and he is liable to be acquitted of the said charge on the basis of benefit of doubt.

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(21) In view of the foregoing discussion, the conviction and sentence of the appellant for offence punishable under Section 302 of IPC, as imposed upon him by the learned trial Court, are hereby set aside. He is acquitted of the said charge on the basis of benefit of doubt. He is reported to be in jail, therefore, we direct that he be released from jail forthwith, if not required in any other matter/case.

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(22) This criminal appeal is allowed .

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(23) Let a certified copy of this order alongwith original record be transmitted to the trial Court concerned as well as to the Superintendent of Jail where the appellant is languishing for necessary information and action, if any.

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Sd/Sd/- (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge

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Raju Rampuri @ Raju v. State of Chhattisgarh

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Raju Rampuri @ Raju v. State of Chhattisgarh

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