Allowed¶85

Dilip Rajak v. State of Chhattisgarh

Chhattisgarh HC18 Mar 2025CRA/257/2005

Case brief

AI extract

What is this about?

Abetment of suicide; Section 306 IPC; Section 117 IPC; dying declaration; fit state of mind; absence of doctor's certificate; Ex.P/1; Ex.P/12; hostile witnesses; benefit of doubt; acquittal; Section 437-A Cr.P.C.; Panchdeo Singh v. State of Bihar; Brundaban Moharana v. State of Orissa; Arjun Singh Rajput v. State of C.G.; Chhattisgarh High Court Bilaspur; CRA No. 257 of 2005; Dilip Rajak v. State of Chhattisgarh.

What did the court decide?

Impugned judgment of conviction and order of sentence dated 12.10.2004 set aside; accused/appellant acquitted of the charges by extending benefit of doubt; bail bonds to remain operative for six months under Section 437-A Cr.P.C.; trial court record with copy of judgment to be sent back to the trial Court. ¶85

Dilip Rajak Vs State of Chhattisgarh — Bail and Remand | Chhattisgarh HC (2025)

What the court decided

AI extract

Outcome

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Issue for consideration

Whether the deceased was in a fit state of mind to give the dying declaration and whether the dying declaration was recorded in accordance with law. +1 more

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Court's answer

Neither the dying declaration (Ex.P/1) before the Executive Magistrate nor the statement (Ex.P/12) before police demonstrates that the deceased was in a fit state of mind; in absence of a certificate of the doctor declaring her fit, both suffer from infirmity and it would not be safe to convict the accused on them.

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Ratio / Principle

It is duly established that the deceased died due to burning; the postmortem opinion (septic shock due to extensive burn) is corroborated by other prosecution witnesses that she poured kerosene oil and set herself ablaze.

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Key takeaways

From the testimonies of PW/2, PW/5 and PW/6 in particular, there is no ingredient of Section 117 IPC against the accused/appellant and the prosecution has failed to prove that he in any manner abetted the deceased to commit suicide.ratio¶82
In absence of credible and clinching material constituting abetment to suicide, the prosecution completely failed to prove beyond reasonable doubt that the accused/appellant abetted the deceased to commit suicide; the benefit of doubt must go to the accused.ratio¶84

Detailed headnote1 paragraphs

Chhattisgarh High Court at Bilaspur (CRA No. 257 of 2005, Smt. Justice Rajani Dubey, CAV judgment delivered 19.03.2025) allowed the appeal against conviction under Section 306 IPC and sentence of R.I. for 05 years and fine of Rs.500/- passed on 12.10.2004 by the 5th Additional Sessions Judge, Bilaspur in Sessions Trial No. 202/2004 for abetment of suicide of Meenakshi, who set herself on fire after pouring kerosene oil on 19.02.2004 and died on 23.02.2004. Her dying declaration (Ex.P/1) recorded by Executive Magistrate P.C. Kori (PW/1) and her statement (Ex.P/12) to I.O. Nagesh Kumar Tiwari (PW/9) carried no doctor's certificate that she was in a fit state of mind — the doctor's certificate space atop Ex.P/1 was blank; father Kundan Singh (PW/2), brother Raj Kumar (PW/5) and neighbour Maneesh Kushwaha (PW/6) turned hostile and denied knowing why she burnt herself; only husband Kuldeep Singh (PW/10) attributed the suicide to the appellant tarnishing her image. Relying on Panchdeo Singh v. State of Bihar, Brundaban Moharana v. State of Orissa and the Division Bench decision in Arjun Singh Rajput v. State of C.G., the Court held that in absence of a medical certificate of fit state of mind the declarations suffer infirmity and conviction on them is unsafe; no ingredient of Section 117 IPC was made out and abetment stood unproved; conviction and sentence were set aside and the appellant acquitted with the benefit of doubt, bail bonds remaining operative for six months under Section 437-A Cr.P.C.

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2025:CGHC:13047

NAFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRA No. 257 of 2005

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Judgment Reserved on : 02.01.2025 Judgment Delivered On :19.03.2025

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Dilip Rajak, S/o Mani Ram Rajak, aged 28 years, R/o Near Radha krishna Mandir Torwa, P.S. Torwa, Tahsila and District Bilaspur (C.G.).

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... Appellant

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versus

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The State of Chhattisgarh, Through : Station House Officer, P.S. City Kotwali, District Bilaspur (C.G.)

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... Respondent

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For Appellant : Mr. Anuroop Panda, Advocate For Respondent : Mr. Devesh G. Kela, Panel Lawyer.

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(Hon’ble Smt. Justice Rajani Dubey)

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(C A V Judgment)

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This appeal arises out of the judgment of conviction and order of sentence dated 12.10.2004 passed by the 5^th Additional Sessions Judge, Bilaspur (C.G.) in Sessions Trial No. 202/2004, whereby and whereunder the learned trial Court convicted the accused/appellant under Section 306 IPC and sentenced him to undergo R.I. for 05 years and to pay fine of Rs.500/- with default stipulation.

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According to the prosecution case, on 19.02.2004 at around 9.00 AM, husband of deceased Meenakshi went to his work place from the house and his wife Meenakshi and his two children were in the house. Deceased Meenakshi sent her two children to market and thereafter set herself on fire after pouring kerosene oil. When the incident came to knowledge of neighbour and her husband, injured Meenakshi was immediately taken to CIMS Hospital, Bilaspur, where the Investigating Officer asked injured Meenakshi about the cause of setting herself on fire then she disclosed that the accused/appellant was tarnishing her image saying that he loves her and said her to marry him deserting her husband, due to this she set herself on fire. Further case of the prosecution is that the information was sent to Executive Magistrate by the Investigating Officer for recording dying declaration of injured Meenakshi and on 20.02.2004, the statement of injured Meenakshi was recorded under Ex.P/1, wherein she made similar statement as had stated before the Investigating Officer. During the course of treatment, Meenakshi succumbed to burn injuries on 23.02.2004. Thereafter, inquest on the body of deceased was prepared under Ex.P/4 and dead body of deceased was sent for postmortem examination which was conducted by Dr. A.P. Roi (PW/7), who gave his report under Ex.P/7 opining the cause of death of deceased to be septic shock due to extensive burn. On the basis of dying declaration of the deceased, FIR (Ex.P/10) for the offence under Section 306 IPC was registered against the accused/appellant. Spot mat was prepared under Ex.P/11 and jerrycan containing kerosene oil was seized under Ex.P/3. During

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the course of investigation, statement of father of deceased, brother and neighbours were recorded under Section 161 of CrPC and upon being found to have committed the crime by the accused/appellant, he was arrested on 01.04.2004 under Ex.P/13 and after usual investigation, charge sheet was filed against the accused/appellant under Section 306 of IPC before the jurisdictional Court.

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The trial court framed charges against the accused/appellant under Section 306 of IPC. The accused/appellant abjured his guilt and pleaded innocence and false implication in the case.

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So as to hold the accused/appellant guilty, the prosecution examined 10 witnesses in all. Statement of the accused/appellant was also recorded under Section 313 of Cr.P.C. in which he denied the circumstances appearing against him in the prosecution case, pleaded innocence and false implication.

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The trial Court after hearing counsel for the respective parties and considering the material available on record, by the impugned judgment has convicted the accused/appellant as mentioned in para-1 of this judgment.

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Learned counsel for the appellant submits that the impugned judgment of conviction and order of sentence passed by the learned trial Court is bad in law, perverse, erroneous and liable to be set aside. There is no evidence on record to connect the prosecution case of abetment by the appellant to deceased to commit suicide. The prosecution has failed to prove essential ingredient to establish offence punishable under Section 306 IPC enumerated in Section 107 IPC. Learned counsel also submits

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that the prosecution has utterly failed to prove its case beyond reasonable doubt but the learned trial Court relying upon the evidence of father of deceased (PW/2) and brother (PW/5), whose statement does not inspire confidence and trustworthy and also does not corroborate by any other evidence, convicted the appellant. Learned counsel also submits that dying declaration was recorded by the prosecution without ascertaining or taking fitness certificate from the doctor regarding the deceased to be in fit state of mind to such statement, as such, the same cannot be relied upon for convicting the appellant. The evidence of PW/10 do not corroborate or supported by other witnesses (PW/2 and PW/5) and there are contradictions and omission in the evidence of prosecution witnesses, which renders the prosecution story doubtful. As such, the impugned judgment of conviction and order of sentence passed by the learned trial Court being illegal and perverse liable to be set aside and the accused/appellant may be acquitted from the charge levelled against him. To buttress his submission, he would rely upon the decision of Hon’ble Apex Court in the matter of Brundaban Moharana and Another Vs. State 1 2 of Orissa and Panchdeo Singh Vs. State of Bihar .

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On the other hand, learned State counsel supporting the impugned judgment of conviction and order of sentence submits that the prosecution has proved its case beyond shadow of doubt and proved the complicity of the appellant. The prosecution witnesses (PW/2 and PW/5) has specifically stated against the appellant and the dying declaration of the deceased was

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1(2010) 13 SCC 381

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2(2002) 1 SCC 577

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recorded by the Executive Magistrate in accordance with law which unerringly points towards the guilt of the appellant. Learned State counsel also submits that the learned trial Court minutely appreciated oral and documentary evidence and has rightly convicted the appellant which does not call for any interference by this Court. Thus, the appeal being without any merit is liable to be dismissed.

¶31

I have heard learned counsel for the parties and perused the material available on record.

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It is apparent from the record of the learned trial Court that charge under Section 306 IPC was framed against the accused/appellant and after appreciating oral and documentary evidence, the learned trial Court convicted him under Section 306 IPC.

¶33

It is not disputed in this case that victim Meenakshi was wife of Kuldeep Singh (PW/10) and she died of burning.

¶34

Dr. A.P. Roi (PW/7) conducted postmortem of the deceased and gave his report under Ex.P/7 opining the cause of death of deceased to be septic shock due to extensive burn. The evidence of doctor is duly corroborated by the other prosecution witnesses that deceased Meenakshi poured kerosene oil and set herself ablaze. Thus, it is duly established that the deceased died due to burning.

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The next question which arises for consideration before this Court is whether the deceased was in a fit state of mind to give dying declaration and the dying declaration was recorded in accordance with law, which ultimately led conviction of the appellant.

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In this context, this Court gone through the evidence of P.C. Kori

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(PW/1), Executive Magistrate, who recorded the dying declaration (Ex.P/1) of the deceased. For ready reference, dying declaration (Ex.P/1) is reproduced herein, which reads thus :-

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“ejuklUu dFku”

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fpfdRld dk izek.ki= & Fkkuk flVh dksrokyh ds lkeus esa

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vkgr dk uke & ehuk{kh W/o dqyfni flag jktiwr mez 24 o”kZ] fuoklh & e/kqou n;kycan] fcykliqj

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1-	vLirky esa dSls HkrhZ gqbZ &	tyus ds dkj.k
2-	dSls tyh &	eS [kqn gh feV~Vh rsy Mkyh gwA xq#okj dks miokl dh fnekx dke ugh fd;kA
3-	D;ks feV~Vh rsy Mkyh &	,d yMdk cnuke dj jgk FkkA eS mls pkgrh Fkh] esjh ‘kknh nqljs ls gks xbZ Fkh] rks fnyhi dgrk Fkk fd rw eq>ls ‘kknh djyks eq>s cgqr ijs’kku dj jgk Fkk eksgYys esa cnuke dj fn;k FkkA blh fy, eS [kqn feV~Vh rsy Mkydj vkx yxkyhA
4-	?kVuk dc vkSj dgk ?kVh &	xq#okj dks lk<s nl cts ds fnu ds djhcA
5-	?kVuk Lfky ij dkSu dkSu Fkk &	?kj esa dksbZ ugh FkkA 2 NksVs&NksVs cPps Fks mudks iSlk nsdj nqdku Hksth FkhA
6-	vkx fdlus cq>kbZ &	esjs iMkslh yksx vkdj vkx cq>k;sA eq>s ;kn ugh dacy Mkys gS fQj ikuh Mkys
7-	fdlh ls dksbZ f’kdk;r &	ugh
8-	vkSj dqN dguk gS &	ugh

¶43

vkgr efgyks ds nksuks gkFk tys Fks nokbZ yxh Fkh gLrk{kj djus esa vleFkZ gSA

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lgh dk;Zikyd n.Mkf/kdkjh fcykliqj ¼N-x-½

¶45

In the above dying declaration, the signature of deceased was not taken and PW/1 in his evidence has stated that both the hands of deceased were burnt and medicine was applied, so her signature and thumb were not taken. This witness, in his cross-examination, has stated that he did not know the name of doctor with whom he inquired about the deceased and at the relevant time the doctor was on duty. He has also stated that he did not obtain a certificate from the doctor stating that the deceased was in a fit state of mind

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to give dying declaration and the same was got written in the memo of police which he had received. He did not see the said memorandum in the charge sheet. This witness has also stated that he did not mention in Ex.P/1 about inquiring/questioning the doctor. This witness has also stated that the certificate of doctor is not in the dying declaration and he had said the doctor to mention in the dying declaration but the doctor told that they do not give/write certificate in the dying declaration and would write in police memo, therefore, the certificate (regarding fit state of mind) was got written in memo of police, and it is also apparent from dying declaration (Ex.P/1) that in upper side of dying declaration the doctor’s certificate is blank.

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Nagesh Kumar Tiwari (PW/9), Investigating Officer, has also recorded the statement of deceased under Ex.P/12 and bare perusal of which goes to show that in this statement also there is no certificate of doctor regarding the deceased being in fit state of mind to give such statement. As such, the evidence of PW/1 to the extent that the doctor would give certificate in police memo gets falsified.

¶49

While dealing with the reliability of evidence of dying declaration and Doctor’s certificate regarding fit state of mind of deceased to make the declaration, the Hon’ble Apex Court in the matter of Panchdeo (supra) held in para 3 and 10 as under :-

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“3. One of the latest pronouncements of this Court

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pertaining to the subject finds place in the decision of Arvind Singh v. State of Bihar wherein, this Court observed that apart from the care and caution factors as noticed earlier the dying declaration ought

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otherwise to be treated as trustworthy. The issue thus becomes as to whether the dying declaration has been able to bring about a confidence thereon or not is it trustworthy or is it a mere attempt to cover up the laches of investigation: it must allure to the satisfaction of the court that reliance ought to be placed thereon rather than a distrust: the confidence of the court is the summum bonum and in the event of there being any affirmation thereto in the judicial mind, question of any disbelief or distrust would not arise. In the event however of there being some infirmity, howsoever negligible it be, the court unless otherwise satisfied about the credibility thereof, ought to look for some corroboration, if however it is otherwise, question of requirement of a corroboration would not arise: dying declaration alluring confidence of the court would be a sufficient piece of evidence to sustain conviction. There is no format as such of dying declaration, neither the declaration need be of any longish nature and neatly structured. As a matter of fact, perfect wording and neatly structured dying declaration may bring about an adverse impression and create a suspicion in the mind of the court since dying declarations need not be drawn with mathematical precision the declarant should be able to recollect the situation resulting in the available state of affairs.

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xxxx

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xxxx

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Before so doing, a look at the decision of this Court in Rosamma Paparambaka Rosamma v. State of A.P.5) would be of some relevance wherein this Court observed that where conviction is solely based on the dying declaration there is an obligation on the part of the court to consider with extreme care and caution both the dying declaration as also

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the evidence of the witnesses supporting it. In Rosammas the doctor was also examined and the doctor appended a certificate at the end of the declaration that the patient is "conscious while recording the statement". It is on this, this Court observed that the question that needs to be considered is as to whether the d Magistrate could have come to a definite conclusion that the injured was in a fit state of mind to make a declaration in the absence of a certificate by the doctor certifying the state of the mind that existed before recording the dying declaration and this Court opined that in the absence of a medical certification that the injured was in a fit state of mind at the time of making that declaration, it would be very risky to accept the subjective satisfaction of e the Magistrate, who opined that the injured was in a fit state of mind at the time of making a declaration. In Rosammas nothing of the state of mind of the declarant before making the statement by the doctor has been stated to be an essential requirement for the prosecution to prove incidentally - mere certification by even a doctor at the end of the declaration that the patient is conscious while recording the statement was stated to be not sufficient this is so by reason of the factum of the dying declaration being only the circumstance for conviction and sentence of the accused. Presently, however, there is not even a doctor's certification as regards the state of the condition of the declarant. It is only the Judicial Magistrate, who has stated from the witness box that the declarant was in a fit condition to make the statement and he was otherwise satisfied in regard thereto. The doctor was available since the Magistrate named him as Dr Raman Shanker Prasad but unfortunately there is

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neither any certification nor even a signature of the doctor in the declaration.”

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Further, in the matter of Brundaban (supra), Hon’ble Apex Court held in para 12 as under :-

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“12. We are of the opinion that in the light of the

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aforesaid statement as the very capacity of the injured to make a statement was in doubt, some support could have been found by the prosecution had the attending doctor been examined or an endorsement taken from him that the injured was fit to make a statement. On the contrary, however, PW9 admitted that though the statement had been recorded in the presence of PW 3 and PW 7 as well as the doctor, he had still not taken his opinion. No reliance can, therefore, be placed on this dying declaration as well.”

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The Division Bench of this Court in the matter of Arjun Singh Rajput Vs. State of C.G. [CRA No. 114/2021, order dated

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03.02.2025] , held in para 24 and 25 as under :-

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“24. 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. 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. P.Koteswara

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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.P14) 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 Paparambaka Rosamma (supra) to the facts of the present case, it is quite vivid that

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the dying declaration suffers from infirmity where the victim has suffered more than 72% extensive 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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In the present case also, according to the evidence of autopsy surgeon Dr. A.P. Roi (PW/7), rigor mortis was present in hands and leg; except head all the body was burnt; sepsis puss was present over the burn injuries and burn was 1^st to 2^nd degree.

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It is also apparent from both the statements (Ex.P/1 and P/12) of deceased that there is no certificate of the treating doctor that the deceased was in fit state of mind to give statement/dying declaration.

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Kundan Singh (PW/2) - father of deceased, Raj Kumar (PW/5) - brother of deceased and Maneesh Kushwaha (PW/6) – neighbour, have stated that they did not know as to why the deceased committed suicide by burning. The prosecution declared these witnesses hostile and cross-examined them but they have denied all suggestion of prosecution and their police statements.

¶76

Kuldeep Singh (PW/10) is the husband of the deceased. He has stated that when he was taking his wife to hospital in auto, on the way, she told that a boy named Dilip Rajak (accused/appellant) used to come to betel shop in front of his house and used to say nonsense things about her to neighbours that he (accused/appellant) is her lover and after 10-15 days deceased would leave him (this witness) and marry the accused/appellant and being tensed due to all this and to save the good image of her husband (this witness), she committed suicide by burning.

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The learned trial Court relying upon the dying declaration of the deceased and testimony of Nagesh Kumar Tiwari (PW/9), recorded its finding of conviction that the accused/appellant abetted the deceased to commit suicide, but Sections 306 and 117 of IPC provides as under :-

¶79

“ 306. Abetment of suicide. – If any person commits

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suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

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Abetting commission of offence by the public or by more than ten persons. – Whoever abets the commission of an offence by the public generally or by any number or class of person exceeding ten, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

¶82

It is apparent from the testimonies of prosecution witnesses in particular PW/2, PW/5 and PW/6 that there is no ingredient of Section 117 of IPC against the accused/appellant and prosecution has failed to prove this fact that the accused/appellant in any manner abetted the deceased to commit suicide. So far as reliability of the dying declaration (Ex.P/1) before the Executive Magistrate and the statement (Ex.P/12) given by the deceased before police are concerned, it nowhere demonstrate that before recording such statement the deceased was in a fit state of mind to give such statement. Thus, in absence of certificate of the doctor declaring the deceased to be in fit state of mind, it (Ex.P/1 and P/12) suffers from infirmity and it would not be safe to convict

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the accused/appellant. Thus, in absence of any credible and clinching material to constitute the offence of abetment to suicide, it would be difficult for this Court to arrive at definite conclusion that the deceased committed suicide due to instigation of accused/appellant. To reiterate, the prosecution has completely failed to prove this fact beyond reasonable doubt that the accused/appellant abetted the deceased to commit suicide, as such, the benefit of doubt, of course, has to go to the accused/appellant.

¶85

In view of the aforesaid discussion, the appeal is allowed. Impugned judgment of conviction and order of sentence dated 12.10.2004 is set aside and the accused/appellant is acquitted of the charges levelled against him by extending benefit of doubt. The appellant is already on bail. His bail bonds shall remain operative for a period of six months in view of Section 437-A of Cr.P.C.

¶86

The Trial Court’s record along with the copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action.

Sd/-

(Rajani Dubey) Judge

pekde

Digitally signed by VIJAY BHARATRAO PEKDE

Dilip Rajak v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Dilip Rajak v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

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