Suresh @ Bantu Chouhan Vs State Of Chhattisgarh

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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Digitally VISHAKHA signed by BEOHAR VISHAKHA BEOHAR

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CRA No. 384 of 2015

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Judgment Reserved on 16.09.2025 Judgment Delivered on 08.10.2025

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1 - Vijay Kashyap S/o Sadhuram Kashyap Aged About 28 Years R/o Dhimrapur, Raigarh, Police Station City Kotwali, District Raigarh Chhattisgarh. , Chhattisgarh

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--- Appellant

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versus

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1 - State Of Chhattisgarh Through Station House Officer, Police Station City Kotwali, District Raigarh Chhattisgarh. , Chhattisgarh

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--- Respondent(s)

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CRA No. 422 of 2015

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1 - Suresh @ Bantu Chouhan S/o Pardeshi @ Vijay Chouhan Aged About 23 Years R/o Village Dhimrapur, P.S. City Kotwali, Raigarh, Civil And Revenue Distt. Raigarh Chhattisgarh , Chhattisgarh

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--- Appellant

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Versus

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1 - State Of Chhattisgarh S/o Through District Magistrate Raigar, Distt. Raigarh Chhattisgarh , Chhattisgarh

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... Respondent

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2

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For respective : Mr. Ashish Gupta & Mrs. Indira Tripathi, Appellants Advocates For Respondent/State : Mr. Devesh G. Kela, P.L.

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Division Bench

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Hon'ble Smt. Justice Rajani Dubey, J. &

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Hon'ble Shri Justice Amitendra Kishore Prasad, J. CAV Judgment

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Per, Amitendra Kishore Prasad, J.

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1. As both the above-captioned appeals arise from the same impugned judgment of conviction and order of sentence, they are being heard together and disposed of by this common judgment.

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2. In these appeals filed under Section 374(2) Cr.P.C., the appellants have challenged the legality, validity and propriety of the judgment of conviction and order of sentence dated 05.03.2015 passed by the Second Additional Sessions Judge, Raigarh, C.G. in Sessions Trial No.06/2012, whereby and whereunder, the appellants stand convicted for the offence under Section 302 read with Section 34 of Indian Penal Code (for short, ‘IPC’) and sentenced them to undergo imprisonment for life and fine of Rs.2,000/- each, in default of payment of fine amount to undergo rigorous imprisonment for one year.

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3. Case of the prosecution, in brief, is that on 03.10.2011, at about

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9:35 PM, PW-1- Vicky Vaishnav lodged a report at Police Station

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City Kotwali, Raigarh, alleging that on the same night, at about 11:00 PM, an unknown person had assaulted Shani Vaishnav (hereinafter called as ‘deceased’) on his head with an intention to kill him, as a result of which, deceased- Shani sustained serious grievous injuries and was admitted to the hospital. Acting on the said report, a FIR (Ex.P-5) was registered against the unknown person and investigation commenced. During the investigation, on 04.10.2011, the accused persons, namely Suresh @ Bantu and Vijay Kashyap, were taken into custody vide Exs.P-25 & 26 and their memorandum statements were recorded vide Exs.P-6 & 7 respectively. Pursuant thereto, accused- Suresh @ Bantu produced a wooden plank alleged to have been used in the assault, which was seized vide Ex.P-9. On the same day, bloodstained soil, one pair of old slippers, and a broken wooden plank were also seized from the spot vide Ex.P-8. However, no seizure was made from the accused- Vijay. Subsequently, on 13.10.2011, the injured- Shani Vaishnav succumbed to the injuries sustained in the incident. A merg intimation was registered vide Exs.P-16 & 17, inquest proceedings were conducted vide Ex.P-1 and the dead body was subjected to post-mortem examination and PW16 Dr. S.K. Bagh conducted the postmortem of the deceased and gave PM report vide Ex.P-19. According to him, cause of death of deceased was due to cardio-respiratory failure as a result of head injuries and their complication. The seized articles, including the wooden plank and blood-stained soil, were sent to the Forensic

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Science Laboratory, Raipur, for examination, but no FSL report has been brought on record.

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4. After due investigation, appellants were charge-sheeted before the jurisdictional criminal Court and the case was committed to the trial Court for hearing and disposal in accordance with law, in which appellants abjured their guilt and entered into defence by stating that they have not committed the offence.

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5. The prosecution in order to bring home the offence, examined as many as 20 witnesses in support of its case and exhibited 28 documents Exs.P-1 to P-28 as well as Articles A-1 & A-2. However, the appellants in support of their defence have examined none and not exhibited any documents.

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6. The trial Court, after completion of trial and upon appreciation of oral and documentary evidence, by its impugned judgment, convicted and sentenced the appellants as mentioned in paragraph-2 of this judgment, against which, they have preferred the instant appeals under Section 374(2) of the Cr.P.C.

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7. Learned counsel for the appellants would submit that the conviction of the appellants rests solely on the basis of the purported oral dying declaration allegedly made by the deceased before PW-2 Rekha Vaishnav, PW-3 Pushpa Vaishnav and PW-4 Urmila Lakra. However, as per the statement of PW-19 Rajeev Sahu, the deceased was unconscious at the relevant time, having undergone a major surgical procedure. In such a

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condition, it is improbable that the deceased could have made any oral dying declaration. He would further submit that the incident occurred on 03.10.2011, whereas the deceased succumbed to her injuries on 13.10.2011. Despite the entire period of hospitalization and subsequent death, the so-called witnesses to the oral dying declaration failed to disclose the existence of such a statement. The dying declaration was first brought to light on 22.10.2011, which casts serious doubts on its authenticity and credibility. In view of the foregoing, the conviction based solely on this uncorroborated and unreliable oral dying declaration is unwarranted. The evidence in support of the conviction is manifestly untrustworthy and, therefore, the conviction is liable to be set aside and the appellants be acquitted of the charge leveled against them.

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8. Learned counsel for the State would support the impugned judgment and submit that the prosecution has brought home the offence against the appellants and has proved the case beyond reasonable doubt and thus, the appellants have rightly been convicted and sentenced for the aforesaid offences.

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9. 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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10. The first question for consideration would be, whether the death of the deceased- Shani was homicidal in nature which has

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been answered by the trial Court in affirmative relying upon the postmortem report (Ex.P-19) proved by Dr. S.K. Bagh (PW-16), which is a finding of fact based on evidence available on record, it is neither perverse nor contrary to the record and we hereby affirm the said finding.

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11. Now, the question would be whether the appellants are the authors of the crime in question?

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12. The appellants have been convicted solely on the basis of the oral dying declaration allegedly made by the deceased before PW-2 Rekha Vaishnav, PW-3 Pushpa Vaishnav, and PW4 Urmila Lakra. There is no other piece of evidence neither legal, oral, nor circumstantial to support the conviction of the appellants apart from the said oral dying declaration. Therefore, it is appropriate to examine the evidence presented by the prosecution one by one.

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13. It is well-settled law that oral dying declaration is a weak kind of evidence. In the matter of Darshana Devi v. State of Punjab reported in 1995 Supp (4) SCC 126 , with regard to oral dying declaration, their Lordships of the Supreme Court have held that an oral dying declaration can form basis of evidence in a given case, but such a dying declaration has to be trustworthy and free from every blemish and inspire confidence.

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14. Similarly, in the matter of Arun Bhanudas Pawar v. State of Maharashtra reported in (2008) 11 SCC 232 , it has been held

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by their Lordships of the Supreme Court that the oral dying declaration made by the deceased ought to be treated with care and caution since the maker of the statement cannot be subjected to any cross-examination.

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15. Furthermore, the Supreme Court, in the matter of Walkhom Yaima Singh v. State of Manipur reported in (2011) 13 SCC 125, has held that there can be no dispute that the dying declaration can be the sole basis for conviction, however, such dying declaration has to be proved to be wholly reliable, voluntary and truthful and further that the maker thereof must be in a fit medical condition to make it. It has also been held that oral dying declaration is a weak kind of evidence.

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16. The principle emerging out from the aforesaid decisions rendered by their Lordships of the Supreme Court is that oral dying declaration is a weak kind of evidence and it can only be made the basis of conviction, if it inspires full confidence of the Court and if the Court is satisfied that the maker of the said oral dying declaration was in a fit state of mind at the time of making it and that it was not an outcome of tutoring, prompting or imagination and where the dying declaration is suspicious and there is no other corroborative piece of evidence on record, it would be unsafe for the Court to record conviction on the solitary evidence of such oral dying declaration.

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17. In the present case, the prosecution has alleged that the deceased made an oral dying declaration to PW-2 Rekha Vaishnav, PW-3 Pushpa Vaishnav, and PW-4 Urmila Lakra. In light of the legal principles laid down by the Hon’ble Supreme Court regarding the evidentiary value and admissibility of oral dying declarations, it becomes necessary to examine and evaluate the evidence adduced by the prosecution. Accordingly, the testimonies of the relevant witnesses shall be discussed in detail hereinafter.

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18. PW-2 Smt. Rekha Vaishnav, mother of the deceased, has stated that on 03.10.2011, the deceased left the house stating that he is going to collect some money, but did not return until 7– 8 p.m. Thereafter, two boys, namely Ajay and Manohar, came and informed her that the deceased had been assaulted during a quarrel and had sustained injuries, and that blood was oozing from his body. She has further stated that upon receiving this information, she, accompanied by her daughter-in-law, PW-3 Pushpa Vaishnav, proceeded to the hospital at Raigarh, where she saw the deceased lying in a bloodied and unconscious condition. Owing to the seriousness of his injuries, the deceased was referred to a hospital at Raipur for further medical treatment. According to the testimony of PW-2, the doctor at Raipur informed her that the deceased was in a critical condition, having sustained multiple injuries on his head, along with internal blood clotting, thereby necessitating an immediate surgical procedure.

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She has also stated that after the surgical operation, the deceased regained consciousness for a brief period, during which, he disclosed that he had been assaulted by two persons. However, in her cross-examination, PW-2 specifically admitted that she had not disclosed the fact of the deceased regaining consciousness or the names of the assailants to any person or authority prior to recording her statement before the Court.

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19. PW-3 Smt. Pushpa Vaishnav, wife of the deceased, has stated that on the date of the incident, i.e., 03.10.2011, the deceased had informed her that he was going to view the statue of Goddess Durga. However, he did not return home thereafter. She has further stated that at around 11:00 p.m., her mother-inlaw (PW-2) woke her up and informed her that her husband had been admitted to the hospital. Upon reaching the hospital, she found the deceased in a bloodied and unconscious condition. Subsequently, the deceased was referred from Raigarh to Raipur for further medical treatment, where he ultimately succumbed to his injuries on 13.10.2011. In her cross-examination, she admitted that the deceased was in an intoxicated state on the day of the incident. She further admitted that the deceased was admitted to the Intensive Care Unit (ICU), where visitors were generally not permitted. However, she stated that on one occasion, when the deceased regained consciousness, he narrated the incident to her. She also specifically admitted that she had not disclosed the oral dying declaration made by the

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deceased at any point prior to the recording of her statement under Section 161 Cr.P.C., which took place only after 10–15 days following the death of the deceased. She further admitted that, prior to that statement, she had not informed any person or authority about the said oral dying declaration.

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20. PW-4- Urmila Lakra, neighbour of the deceased, has stated that the deceased had made an oral dying declaration to her. However, during her cross-examination, she admitted that she had not disclosed any information regarding the said oral dying declaration at any earlier stage. She further admitted that she had not communicated the contents of the alleged dying declaration to any person in the locality or to any authority prior to her statement before the Court.

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21. Contradicting the testimonies of the aforementioned witnesses, PW-19 Dr. Rajeev Sahu, the treating medical officer at the hospital in Raigarh, has categorically deposed regarding the medical condition of the deceased throughout the duration of his treatment. According to his testimony, from the time of the deceased’s admission at the hospital in Raipur until his demise, the deceased remained in an unconscious state and was never in a position to communicate or make any statement. He further affirmed that the deceased was critically ill and remained under continuous intensive care, thereby rendering it medically impossible for him to have made any coherent or conscious oral dying declaration. PW-19 also produced and exhibited the

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relevant medical records, marked as Exhibit P-19, which detailed the nature and extent of the injuries sustained by the deceased. The injuries were consistent with an assault, as per information conveyed to PW-19 by a hospital staff member. The records revealed multiple wounds to the head, accompanied by internal blood clotting, which necessitated urgent surgical intervention. The doctor’s report underscored the grave and life-threatening nature of the injuries, as well as the critical condition of the deceased from the time of admission until his death. The medical evidence furnished by PW-19 thus squarely undermines the credibility and feasibility of the alleged oral dying declaration. In view of the deceased's prolonged unconsciousness and the continuous intensive medical care administered, the assertion that he was in a condition to make any oral statement appears highly implausible and must be approached with considerable skepticism. The medical findings stand in direct contradiction to the claims made by PW-2 Rekha Vaishnav, PW-3 Pushpa Vaishnav and PW-4 Urmila Lakra, thereby casting serious doubt on the authenticity, reliability, and admissibility of the alleged oral dying declaration.

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22. In the same vein, PW-16 Dr. S.K. Bagh, who conducted the post-mortem examination, confirmed that the cause of death was complications arising from the injuries sustained in the assault. According to his expert opinion, the autopsy revealed significant cranial trauma, including a substantial defect in the skull, wherein

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a segment of bone measuring approximately 13 cm by 7 cm was found missing. This severe and localized injury to the head not only confirms the brutality of the assault but also fully corroborates the medical findings recorded by PW-19 Dr. Rajeev Sahu. The post-mortem findings further reinforce the conclusion that the deceased was in a critical and incapacitated condition until his death, thereby rendering the possibility of a conscious and voluntary oral dying declaration highly improbable.

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23. From a careful perusal of the evidence of all relevant witnesses, including the medical officers, it is manifest that the deceased remained unconscious from the time of admission at the hospital in Raigarh until his death following the surgical operation at Raipur. In this context, the assertions made by witnesses PW-2 Rekha Vaishnav, PW-3 Pushpa Vaishnav and PW-4 that the deceased regained consciousness after the operation and made an oral dying declaration before them are inherently untrustworthy and unreliable. The treating doctor, PW19 Dr. Rajeev Sahu, has categorically stated that the deceased remained unconscious throughout and underwent a major surgical procedure, thereby rendering the possibility of any oral dying declaration wholly improbable. Furthermore, the alleged oral dying declaration was first disclosed at an unduly delayed stage, i.e., on 22.10.2011, well after the death of the deceased, which severely undermines the credibility of the witnesses who testified regarding the declaration. In light of the foregoing, the

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evidence relating to the oral dying declaration must be viewed with extreme caution and cannot form the sole basis for conviction. The testimony supporting the dying declaration is thus unreliable and does not inspire confidence. While the evidence of related witnesses cannot be outrightly discarded at the threshold, it must nevertheless be subjected to meticulous scrutiny. Unless the evidence of such witnesses is found to be unblemished, consistent, and trustworthy, it cannot be accepted as the sole basis for conviction. The proximity of the relationship often necessitates a higher degree of scrutiny to ensure that the testimony is free from any bias or interest. An important aspect to be noted is that the statements of the appellants recorded under Section 161 Cr.P.C. were taken after a considerable delay, specifically on 22.10.2011, which is significantly belated in relation to the incident and the death of the deceased. In view of this delay, the statements recorded under Section 161 Cr.P.C. must be examined with great care and caution, as the passage of time may affect the reliability and veracity of the disclosures made therein.

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24. The Hon’ble Supreme Court in the matter of Gopal Singh and another v. The State of Madhya Pradesh and another reported in AIR 1972 SC 1557 has clearly held with reference to Section 32 of the Indian Evidence Act, 1872 that a dying declaration which does not contain complete names and addresses of the persons charged with the offence, even though

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may help to establish their identity, is not of such a nature on which conviction can be based and it cannot be accepted without corroboration and observed in Para-08 as under:

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“8. But even if we resume that the High Court was right in concluding that the dying declaration established the identity of the appellants, it was certainly not of that character as would warrant its acceptance without corroboration. It is settled law that a court is entitled to convict on the sole basis of a dying declaration if it is such that in the circumstances of the case it can be regarded as truthful On the other hand if on account of an infirmity, it cannot be held to be entirely reliable, corroboration would be required. See: Kushal Rao v. The State of Bombay, AIR 1958 SC 22. In this case, it must be first remembered that though the names of the appellants' fathers were known to Mod-Singh and others who accompanied him to the Police Station, their fathers' names and present residence have not been mentioned. It is rather unusual for Police Officers not to enquire and record in the first information the full name and address of the persons complained against……..”

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25. Further, the Hon’ble Supreme Court in the matter of Raja Khan vs. State of Chhattisgarh reported in (2025) 3 SCC 314 has held as under:-

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“28. Sections 25 and 26 of the Evidence Act stipulate that confession made to a police officer is not admissible. However, Section 27 is an exception to Sections 25 and 26.and serves as a

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proviso to both these sections [State (UT of Delhi) v. Bal Krishan].

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29. This Court is of the view that Section 27 lifts the ban, though partially. to the admissibility of confessions. The removal of the ban is not of such an extent so as to absolutely undo the object of Section 26. As such the statement whether confessional or not is allowed to be given in evidence but that portion only which distinctly relates to discovery of the fact is admissible. A discovery of a fact includes the object found, the place from which it is produced andthe knowledge of the appellant-accused as to its existence (Udai Bhan v. State of U.P.5).

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30. The essential ingredients of Section 27 of the Evidence Act are threefold:

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(i) The information given by the accused must lead to the discovery of the fact which is the direct outcome of such information.

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(ii) Only such portion of the information given as is distinctly connected with the said recovery is admissible against the accused.

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(iii) The discovery of the facts must relate to the commission of such offence.

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31………... The object of the provision i.e. Section 27 was to provide for the admission of evidence which but for the existence of the section could not in consequence of the preceding sections, be admitted in evidence. It would appear that under Section 27 as it stands in order to render-the evidence leading to discovery of any fact admissible, the information must come from any

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accused in custody of the police…………….Thus, what is admissible being the Information, the same has to be proved and not the opinion formed on it by the police officer. In other words, the exact information given by the accused while in custody which led to recovery of the articles has to be proved………. The extent of information admitted should be consistent with understandability. Mere statement that the accused led the police and the witnesses to the place where he had concealed the articles is not indicative of the information given.”

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26. Likewise, in thematter of Poonam Bai vs. State of Chhattisgarh reported in (2019) 6 SCC 145 , the Hon’ble Supreme Court has held as under:-

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“10.There cannot be any dispute that a dying declaration can be the sole basis for convicting the accused. However, such a dying declaration should be trustworthy, voluntary, blemishless and reliable. In case the person recording e the dying declaration is satisfied that the declarant is in a fit medical condition to make the statement and if there are no suspicious circumstances, the dying declaration may not be invalid solely on the ground that it was not certified by the doctor. Insistence for certification by the doctor is only a rule of prudence, to be applied based on the facts and circumstances of the case. The real test is as to whether the dying declaration is truthful and voluntary. It is often said that man 1 will not meet

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his Maker with a lie in his mouth. However, since the declarant who makes a dying declaration cannot be subjected to cross-examination, in order for the dying declaration to be the sole basis for conviction, it should be of such a nature that it inspires full confidence of the court. In the matter on hand, since Ext. P-2, the dying declaration is the only circumstance relied upon by the prosecution, in order to satisfy our conscience, we have considered the g material on record keeping in mind the well-established principles regarding the acceptability of dying declarations.”

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27. The Hon’ble Supreme Court in the matter of Sharad Birdhichand Sarda v. State of Maharashtra reported in (1984)

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4 SCC 116 has clearly held that Section 32 of the Indian Evidence Act, 1872 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.

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28. Following the principles of law laid down in the judgments of Gopal Singh and Sharad Birdhichand Sarda (supra), it is manifest that the cumulative evidence, including that of the star witnesses and the medical testimony, establishes that the deceased was not in a conscious state of mind from the time of admission until his death on 13.10.2011, which was

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approximately ten days after the incident. The evidence of the treating doctor, who was the first medical professional to examine the deceased upon his admission to the hospital, is of paramount importance and cannot be disregarded. Being a qualified medical expert, the doctor was unequivocally positioned to provide an accurate and authoritative assessment of the deceased’s mental and physical condition. Therefore, the testimonies in respect of oral dying declaration is highly doubtful. Considering the deceased’s prolonged unconsciousness and critical physical state carries significant weight and credibility to disbelieve the same. In light of the above, the possibility of the deceased making a conscious and coherent oral dying declaration is highly doubtful and must be approached with utmost caution. The factual matrix and medical evidence collectively cast serious doubts on the reliability of the purported oral dying declaration. On careful scrutiny, the witnesses who claimed to have received the dying declaration cannot be regarded as wholly trustworthy, as their testimonies are inconsistent with the medical facts on record. The alleged oral dying declaration appears to be a contrived and fabricated statement, lacking the necessary veracity to be accepted as reliable evidence. Consequently, in view of the glaring discrepancies between the medical evidence and the testimonies of the witnesses, the conviction founded solely on such questionable evidence cannot be sustained. The oral dying

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declaration, being the cornerstone of the prosecution’s case, fails to meet the threshold of credibility required to establish guilt beyond reasonable doubt. Therefore, the evidence relating to the oral dying declaration is held to be inadmissible and insufficient to uphold a conviction. The other evidence as produced by the prosecution also does not produce any cogent corroborative piece of evidence in order to prove its case beyond all reasonable doubt.

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29. In view of the foregoing, we are of the considered opinion that the prosecution has failed to prove its case beyond reasonable doubt. Consequently, the appellants are entitled to acquittal of the charges leveled against them.

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30. In the result, both the appeals filed by the respective appellants are allowed and the impugned judgment of conviction and order of sentence is hereby set- aside. The appellants are acquitted of the aforesaid charges leveled against them.

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31. The appellants are reported to be on bail. Keeping in view the provision of Section 437-A of CR.P.C., the appellants are directed to forthwith furnish personal bond in terms of Form No.45 prescribed in the Cr.P.C. of sum of Rs.25,000/- each with one surety each in the like amount before the trial Court concerned which shall be effective for a period of six months along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave,

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the aforesaid appellants on receipt of notice thereof shall appear before the Hon’ble Supreme Court.

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32. Registry is directed to transmit the lower Court record along with a copy of this judgment to the concerned trial Court forthwith for information and necessary compliance.

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Sd/- Sd/(Rajani Dubey) (Amitendra Kishore Prasad) Judge Judge

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Vishakha

Suresh @ Bantu Chouhan v. State Of Chhattisgarh

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Suresh @ Bantu Chouhan v. State Of Chhattisgarh

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