Shamim Khan Vs State of Chhattisgarh

 Shamim Khan, S/o Rais Khan, aged about 30 years, R/o Simga Chowki Korbi, Police Station Pasaan, District Korba, Civil and Revenue District Korba (C.G.)

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... Appellant(s)

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Versus

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 State of Chhattisgarh, through: Police Station Pasaan, District Korba (C.G.)

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... Respondent(s)

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For Appellant	:-	Mr. Ajay Mishra, Advocate.
For Respondent-State	:-	Mr. Vivek Mishra, Panel Lawyer.
Amicus Curiae	:-	Mr. Anurag Dayal Shrivastava, Advocate.

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Division Bench

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

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C A V Judgment

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(Cr.A. No. 119 of 2019)

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Sanjay K. Agrawal, J.

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1. Assail in the present Criminal Appeal, under Section 374(2) of the Code of Criminal Procedure, 1973 (for short ‘CrPC’) is to the Judgment dated 20.7.2017 passed by learned Additional Sessions Judge, Katghora, District Korba (Trial Court) in Sessions Case No.83/2016, by which the sole appellant herein has been convicted for offence under Section 302 of the Indian Penal Code, 1860 (for short ‘IPC’) and sentenced thereunder to suffer Rigorous Imprisonment for Life and to pay fine of Rs.5000/- and in default of payment of fine, to suffer additional Rigorous Imprisonment for One year, for causing death of his wife Afsana Khatoon (deceased), after exonerating him of the charges under Sections 498-A and 304-B of IPC.

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Prosecution’s case, in brief:-

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2. The marriage of the appellant and deceased Afsana Khatoon was solemnized on 2.5.2016 and immediately after about 16 days of their marriage, the appellant raised a demand of Rs.10,000/- and one motorcycle from deceased’s father, Mohd. Mehboob (PW-1), who expressed his inability to fulfill the said demand made

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(Cr.A. No. 119 of 2019)

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by the appellant. Thereafter, the appellant is said to have started harassing and beating his wife Afsana Khatoon on account of non-fulfilling of his demand of Rs.10,000/- and motorcycle. Subsequently, on 30.6.2016, around 4:00 a.m., in the morning, the appellant is said to have started beating her on account of said demand of dowry and on that count set her on fire after pouring kerosene oil on her body. She was taken to the District Hospital, Baikunthpur. Dr. S.H. Shende, the contract Medical Officer informed Police Station vide Ex. P-16 regarding the admission of Afsana Khatoon in the said District Hospital in burned condition. MLC of Afsana Khatoon was conducted vide Ex. P-18. Vide Ex. P-4, her dying declaration was recorded by Sub Inspector, C.S. Sidar (PW-14). Thereafter, vide Ex. P-9, another dying declaration of Afsana Khatoon was recorded by the Executive Magistrate, Rupesh Kumar Singh (PW-9), at 12:33-12:42 pm. Thereafter, she succumbed to the burn injuries at 4:27 p.m., the information of which was sent by the said Medical Officer to the Police Station, Baikunthpur vide Ex. P-17, on the basis of which zero Merg Intimation was recorded vide Ex. P-23 and zero FIR was registered vide Ex. P-24. Inquest report was conducted vide Ex.

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(Cr.A. No. 119 of 2019)

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P-5, pursuant to which post-mortem of deceased Afsana

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Khatoon was conducted by the Medical Officer, Dr. Yogendra Chouhan (PW-12) who gave his report opining that the cause of her death was shock due to burn injuries (approximately 94-96%). Thereafter, formal Merg Intimation (Ex. P-21) and FIR (Ex. P-22) was registered against the appellant for offence under Section 304-B of IPC. Vide Ex. P-6, burnt clothes of deceased Afsana Khatoon and other articles were seized. Crime Details Form was prepared vide Ex. P-7 and Spot

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Map was prepared vide Ex. P-14. Statements of the witnesses were recorded. Arrest of the appellant was made.

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3. After completion of the investigation, the appellant was charge-sheeted before the Trial Court where charges were framed against him principally for offences under Sections 498-A and 304-B of IPC for treating his wife Afsana Khatoon with cruelty on account of demand of dowry after their marriage which took place on 2.5.2016 and her dowry-death and, in alternative, charge under Section 302 of IPC was also framed against him for committing murder of his wife Afsana Khatoon. Appellant denied all the said charges and entreated for trial.

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(Cr.A. No. 119 of 2019)

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4. During the course of trial, in order to prove its case, the prosecution examined as many as 15 witnesses as PW-1 to PW-15 and exhibited documents vide Exhibits P-1 to P-35. After closure of the prosecution evidence, s tatement of the accused/appellant was recorded under Section 313 CrPC in which he denied the circumstances appearing against him in the evidence produced by the prosecution, pleaded innocence and false implication. In defence, two witnesses have been examined as DW-1 and DW-2.

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5. On conclusion of the trial, learned Trial Court, by the impugned judgment dated 20.7.2017, after appreciating the oral and documentary evidence available on record, held that the prosecution has not been able to prove charges under Sections 498-A and 304-B of IPC against the appellant beyond doubt for treating his wife Afsana Khatoon with cruelty on account of dowry demand of Rs.10,000/- and one motorcycle and her dowry-death and accordingly, after exonerating the appellant of the said charges, held him guilty of the alternative charge under Section 302 of IPC for committing murder of his wife Afsana Khatoon and sentenced him thereunder to suffer Life Imprisonment and to pay fine of Rs.5000/with default stipulation, which led to filing of the

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(Cr.A. No. 119 of 2019)

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present appeal by the appellant calling in question the legality, validity and correctness of the impugned judgment passed by learned Trial Court.

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:Submission on behalf of the appellant

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6. Mr. Ajay Mishra, learned Counsel appearing for the appellant, would submit that the learned Trial Court is absolutely unjustified in convicting the appellant for offence under Section 302 of IPC, after having exonerated him of the charges under Sections 498-A and 304-B of IPC, on the sole basis of dying declaration (Ex. P-9) recorded by the Executive Magistrate, PW-9 Rupesh Kumar Singh, which does not inspire confidence at all and therefore the appellant could not have been convicted for offence under Section 302 of IPC which deserves to be set-aside and the appellant is entitled to be acquitted of the said offence.

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Submissions on behalf of the State:-

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7. Mr. Vivek Mishra, learned State Counsel, would however submit that learned Trial Court is absolutely justified in convicting the appellant for offence under Section 302 of IPC. Though the appellant has been acquitted of the charges under sections 498-A and 304-B of IPC, but the part of dying declaration (Ex. P-9) of deceased Afsana

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(Cr.A. No. 119 of 2019)

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Khatoon is reliable to the extent that the appellant has set her on fire after pouring kerosene oil on her body in the morning on the date of offence and as such the learned Trial Court has rightly found proved the offence under Section 302 of IPC against the appellant. The impugned judgment therefore is unimpeachable and the appeal is liable to be dismissed.

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Submission of learned Amicus Curiae:

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8. Mr. Anurag Dayal Shrivastava, learned Amicus Curiae, would submit that the learned Trial Court has partly disbelieved and partly believed the dying declaration (Ex. P-9) of deceased Afsana Khatoon. The part of the said dying declaration which has not been believed is that the appellant has treated the deceased Afsana Khatoon with cruelty on account of demand of dowry and caused her dowry death. Once a part of the dying declaration is found to be untrue bifurcating the other part of the dying declaration which is allegedly found to be true, the rule of caution requires that corroboration must be sought to rely upon the other part of the evidence of the witness, failing which it would be risky and unsafe to rely upon the uncorroborated dying declaration. In this regard, he would rely upon the decision of the Supreme Court rendered in the matter of

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(Cr.A. No. 119 of 2019)

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Godhu and Another v. State of Rajasthan 1 which has

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been followed in the matter of Jumni and Others v. State of Haryana2 .

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9. Learned Amicus Curiae would further submit that though physical and mental state of mind of the victim is rule of caution, but in the instant case as per the statement of PW-11 Dr. S.H. Shende, the Medical Officer of the District Hospital, Baikunthpur, when the victim Afsana Khatoon was admitted to the hospital in the morning around 9:00-9:25 a.m. with 90-95%, she was not in a position to speak and she was writhing in extreme pain and the fingers of both of her hands were already burnt. The dying declaration (Ex. P-9) of the victim Afsana Khatoon was recorded by PW-9 Rupesh Kumar Singh, Executive Magistrate, after certification by PW-12 Dr. Yogendra Chouhan, in which Dr. Chouhan has only written that the victim was able to speak. There is no evidence that the victim was in a fit physical and mental state of mind to record her dying declaration. As such, there is no admission that after her admission in the hospital, she gained her mental consciousness and she was in physical and mental alert to record her dying declaration or her health condition

1 (1975) 3 SCC 241

2 (2014) 11 SCC 355

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(Cr.A. No. 119 of 2019)

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improved rather than deteriorating further, after her admission in the hospital with burn injuries of 90-95%. The evidence available on record would however show that the after her admission in the hospital the victim’s physical and mental condition remained deteriorated and in the evening at 4:27 p.m. she succumbed to the burn injuries. Thus, there is no evidence brought on record by the prosecution to hold that the victim was in a physical and mental state of mind to record her dying declaration. Therefore, on both the aforesaid grounds, the dying declaration (Ex. P-9) of deceased Afsana Khatoon deserves to be discarded.

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10. We have heard learned counsel appearing for the parties and learned Amicus Curiae as well, considered their rival submissions made herein-above and also perused the record of the case with utmost care and circumspection.

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:Corroboration of dying declaration

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11. It cannot be laid down as an absolute rule of law that dying declaration cannot form the sole basis for conviction unless it is corroborated; each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made.

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(Cr.A. No. 119 of 2019)

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v. v. [See: Kushal Rao State of Bombay 3 , Muniappan State of Madras4 , Tarachand Damu Sutar v. State of Maharashtra5 and Dashrath v. State of Madhya Pradesh6 ]. However, though corroboration of dying is not essential, but it strengthens the evidentiary value of v. dying declaration. [See: Girdhar Shankar Tawade State of Maharashtra7 ]

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:Physical and mental fitness of the declarant

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12. The requirement of the Doctor's endorsement as to the mental fitness of the deceased in the dying declaration is only a rule of prudence and the ultimate test whether the dying declaration was truthful and voluntary. The Constitution Bench of the Supreme Court in the matter of Laxman v. State of Maharashtra 8 has clearly held

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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, and has observed as under:-

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"5. The court also in the aforesaid case relied upon the decision of this court in Harjeet Kaur v. State of Punjab [1999 (6) SCC 545] case wherein the magistrate in his

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3 AIR 1958 SC 22

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4 AIR 1962 SC 1252

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5 AIR 1962 SC 130

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6 AIR 2008 SC 316

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7 AIR 2002 SC 2078

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8 (2002) 6 SCC 710

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(Cr.A. No. 119 of 2019)

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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 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 & Ors. v. State of Andhra Pradesh [1999 (7) SCC 695] to the effect that

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"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"

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has been too broadly stated and is not the correct enunciation of law. It is indeed a hyper-technical 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 where-after he recorded the dying declaration. Therefore, the judgment of this court in Paparambaka Rosamma & Ors. vs. State of Andhra Pradesh [1999 (7) SCC 695] must be held to be not correctly decided and we affirm the law laid down by this court in Koli Chunilal Savji & Another vs. State of Gujarat [1999(9) SCC 562] case. "

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(Cr.A. No. 119 of 2019)

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13. In the instant case, as per the statement of PW-11 Dr. S.H. Shende, the Medical Officer (contract basis) of District Hospital, Baikunthpur, deceased Afsana Khatoon was admitted to the hospital on 30.6.2016 at 9:00-9:25 a.m. in burned condition of 90-95% and at the time of her

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admission, she was not able to speak on account of extreme pain and suffering and the fingers of both of her hands were already burnt and she was not in a position to make her thumb impression. After admission of the victim Afsana Khatoon in the said hospital, her dying declaration (Ex. P-9) was recorded on the same day at 12:33-12:42 p.m. by the Executive Magistrate, PW-9 Rupesh Kumar Singh, which was certified at 12:30 p.m. by PW-12 Dr. Yogendra Chouhan, the Medical Officer of District Hospital, Baikunthpur only mentioning that she was in a position to speak. Dr. Chouhan, did not certify that she was in a fit physical and mental state of mind to record her dying declaration, though it is the duty of certifying doctor to certify that the victim is fit physical and mental state of mind to record her dying declaration rather than to simply mention that the victim is in a position to speak.

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Thereafter, victim Afsana Khatoon succumbed to the

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burn injuries at 4:27 p.m., the information of which was reported to the Police Station

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(Cr.A. No. 119 of 2019)

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Baikunthpur vide Ex. P-17 by PW-11 Dr. S.H. Shende. As such, there is no evidence on record that after her admission in the hospital at 9:00-9:25 a.m. with burn injuries of 90-95%, her health condition improved at 12:30 p.m. and she gained physical and mental alertness to make a correct dying declaration and was able to understand things properly as thereafter she succumbed to the injuries at 4:27 pm. Thus, in our considered opinion, it would not be safe to held that she was in a fit physical and mental state of mind to record her dying declaration.

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14. In the matter of Dandu Lakshmi Reddy v. State of

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Andhra Pradesh9 , their Lordship of the Supreme Court have held that if the court has even a slight doubt about the mental soundness of the author of the dying declaration it would be unsafe to base a conviction on such a statement.

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15. Similarly, the Supreme Court in the matter of Sampat

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Babso Kale v. State of Maharashtra 10 has refused to

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uphold the conviction on the basis of the dying declaration of deceased who had sustained 98% burn injuries and her statement was recorded after she was injected with painkillers, creating serious doubts as to

9 (1999) 7 SCC 69

10 (2019) 4 SCC 739

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(Cr.A. No. 119 of 2019)

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whether the victim was in a fit physical and mental state of mind to record her dying declaration given the extent of her burn injuries on account of which she must have been in extreme pain and suffering and once the sedatives had been injuries, the possibility of her being in a state of delusion could not be completely ruled out.

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16. Now, as regards the part of the dying declaration (Ex. P-9) of deceased Afsana Khatoon that her husband (appellant herein) used to demand Rs.10,000/- and a motorcycle and and used to assault her on account of said demand of dowry and on that count also in the morning on the date of incident he set her on fire after pouring kerosene oil on her body, the said part regarding alleged cruelty meted out to deceased Afsana Khatoon for demand of dowry and her alleged dowry death has not been found to be established on behalf of the prosecution beyond doubt by learned Trial Court and as such acquitted the appellant of the charges under Sections 498-A and 304-B of IPC. The said finding of learned Trial Court has attained finality in absence of any appeal on behalf of the prosecution/State.

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17. Learned Trial Court has relied upon the said dying declaration (Ex. P-9) of deceased Afsana Khatoon only to the extent of the part that her husband (appellant

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(Cr.A. No. 119 of 2019)

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herein) set on her fire after pouring kerosene oil on her body and accordingly convicted the appellant for offence under Section 302 of IPC which was the alternative charge. The Supreme Court in the matter of Godhu (supra) has expressed inability to subscribe to the view that if a part of the dying declaration has not been proved to be correct, it must necessarily result in the rejection of the whole of the dying declaration, and observed in paragraph-16 as under:-

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“16. We are also unable to subscribe to the view that if a part of the dying declaration has not been proved to be correct,. The rejection of a part of the dying declaration would put the court on the guard and induce it to apply a rule of caution. There may be cases wherein the part of the dying declaration which is not found to be correct is so indissolubly linked with the other part of the dying declaration that it is not possible to sever the two parts. In such an event the court would well be justified in rejecting the whole of the dying declaration. There may, however, be other cases wherein the two parts of a dying declaration may be severable and the correctness of one part does not depend upon the correctness of the other part. In the last mentioned cases the court would not normally act upon a part of the dying declaration, the other part of which has not been found to be true, unless the part relied upon is corroborated in material particulars by the other evidence on record. If such other evidence shows that part of the dying declaration relied upon is correct and trustworthy the court can act upon that part of the dying declaration despite the fact that another part of the dying declaration has not been proved to be correct. ”

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(Cr.A. No. 119 of 2019)

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Their Lordships have further held that it would be unsafe to base the conviction of the accused on the uncorroborated dying declaration, and observed in paragraph-19 therein as under:-

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“19. The prosecution also led evidence to show recovery of unlicensed gun and two cartridges from the field of Godhu in pursuance of his statement. This evidence does not connect Godhu accused with the crime of murder of Gheru deceased because there is nothing to show that the said gun was used for the murder of the deceased. We thus find that the material on record is bereft of any evidence which may lend corroboration to the dying declaration of Gheru deceased regarding the complicity of Godhu. It is, in our opinion, not safe to base the conviction of Godhu accused upon the uncorroborated dying declaration of Gheru deceased in this case. ”

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18. The principles of law laid down in Godhu (supra) has

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been followed with approval in the matter of Jumni (supra).

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19. In the instant case, the part of the dying declaration (Ex. P-9) of deceased Afsana Khatoon in respect of alleged cruelty meted out to her by the appellant on account of demand of dowry and her alleged dowry death has not been found to be established beyond doubt by learned Trial Court and as such acquitted the appellant of the charges under Sections 498-A and 304-B of IPC. However, learned Trial Court proceeded to convict the

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(Cr.A. No. 119 of 2019)

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appellant for offence of her murder under Section 302 of IPC on the uncorroborated dying declaration of deceased Afsana Khatoon which without there being any corroboration deserves to be discarded, relying upon the above-mentioned decision of Godhu (supra) followed in Jumni (supra), as the rejection of a part of the dying declaration would put the court on the guard and induce it to apply a rule of caution and the court must not base the conviction on uncorroborated dying declaration. In the instant case, there is no corroboration brought on record by the prosecution as the main charges against the appellant was for offences

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under Sections 498-A and 304-B of IPC and the charge for offence under Section 302 of IPC was even the alternative charge under which he has been ultimately convicted. As such, in absence of any corroborative piece of evidence, it would be wholly risky and unsafe to base the conviction of the appellant on the uncorroborated dying declaration of deceased Afsana Khatoon. In this view of the matter, conviction of the appellant for offence under Section 302 of IPC deserves to be set-aside and he is entitled to be acquitted of the said offence on the basis of benefit of doubt.

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20. Resultantly, the appeal is allowed and the impugned judgment dated 20.7.2017 is set-aside. Consequently, conviction of the appellant for offence under Section 302 of IPC also stands set-aside and he is acquitted of the said offence. He is reported to be in jail since 7.7.2016. He is directed to be released from jail forthwith, if his detention is not required in connection with any other offence.

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21. Let a certified copy of this judgment along with the original record be transmitted forthwith to the Trial Court and the concerned Superintendent of Jail be also served with a copy of this judgment, for information and necessary action, if any, at the earliest.

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22. Before parting with the record, we render a word of appreciation to Mr. Shrivastava, learned Counsel, who has assisted this Court as Amicus Curiae in this appeal.

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

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SHARAD Digitally signedby SHARAD KUMAR KUMAR YADAVDate: YADAV 2025.02.0512:58:24 +0530

Shamim Khan v. State of Chhattisgarh

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Shamim Khan v. State of Chhattisgarh

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