Dev Lal Sonwani @ Dukhiram vs State Of Chhattisgarh on 11 November, 2022

[Cites 30, Cited by 0]

Chattisgarh High Court

Dev Lal Sonwani @ Dukhiram vs State Of Chhattisgarh on 11 November, 2022

1. This criminal appeal preferred by the appellant under Section 374(2) of the CrPC is directed against the impugned judgment dated 8-1-2018 passed by the Additional Judge to the Court of Additional Sessions Judge, Mungeli, in Sessions Trial No.H- 41/2014, by which he has been convicted for offence under Section 302 of the IPC and sentenced to undergo imprisonment for life and pay a fine of ₹ 500/-, in default, to further undergo rigorous imprisonment for one year.

Cr.A.No.108/2018

Page 2 of 23

2. Case of the prosecution, in brief, is that on 28-5-2014, the present appellant and his father Dayali (now acquitted) in furtherance of their common intention, poured kerosene oil on the body of deceased Chande Das and set him on fire, who suffered grievous deep burn injuries and died in hospital on 3-6-2014, and thereby committed the offence. It is admitted position on record that the deceased was son-in-law of Dayali and brother-in-law of the appellant. Marriage of the deceased was solemnized at Village Rehunta in chudi form with Sunita - daughter of Dayali (acquitted accused) and sister of the appellant herein. At the relevant point of time, before the incident, the deceased & Sunita had gone to Village Rehunta with the appellant and the acquitted accused for participating in a marriage and after participating in the marriage, the deceased came back to his village, but his wife Sunita stayed therein and for bringing her back, on 28-5-2014, the deceased had gone to his father-in-law's house and after reaching the house, he asked about the whereabouts of Sunita finding her not present in the house, on that, dispute arose and altercation took place between the deceased with the appellant and the acquitted accused and it is the case of the prosecution that during the course of altercation with deceased Chande Das, the appellant herein & his father Dayali (acquitted accused) poured kerosene oil over the body of the deceased and set him on fire due to which, he suffered 60% burn injuries and rushed away from the spot. Chande Das was helped by Rajeshwari Bai (PW-4), Radhelal (PW-2) & Sanjay Sonwani (PW-8) and he has been admitted to the District Hospital, Cr.A.No.108/2018 Page 3 of 23 Mungeli. Head Constable Salik Ram Rajput (PW-17), at that point of time, recorded this fact in the roznamcha sanha of the police station at serial No.1689 and true copy of the roznamcha sanha is exhibited as Ex.P-28C, and further, medical examination form of Chande Das is exhibited as Ex.P-16A. On the same day, on 28-5- 2014, statement of deceased Chande Das was recorded by Salik Ram Rajput (PW-17) and this document has not been tendered into evidence before the trial Court, but it forms part of the record as an un-exhibited document. During the course of treatment at Mungeli Hospital, medical condition of Chande Das became worst and it was deteriorating, therefore, he was referred to Chhattisgarh Institute of Medical Sciences (CIMS) where he was admitted in Trauma Centre on 29-5-2014 and his admission ticket has been exhibited as Ex.P-19. On the same date i.e. 29-5-2014, dying declaration of Chande Das was recorded vide Ex.P-20 in presence of Dr. Shashi Kant Sahu (PW-10). He remained hospitalized up to 3-6-2014, but on account of burn injuries, he succumbed to the burn injuries on 3-6-2014 at 12.45 p.m.. The death memo of deceased Chande Das has been exhibited as Ex.P-21. Thereafter, morgue at zero was registered at Police Station Tarbahar, Bilaspur on death of Chande Das on the basis of information given by Prakash Chand (PW-11) vide Ex.P-22 which has been transferred to Police Station City Kotwali, Mungeli and registered as morgue No.3/2014 vide Ex.P-25. On the basis of morgue, FIR has been registered vide Ex.P-26 against the appellant and acquitted accused Dayali and the wheels of investigation started running. Cr.A.No.108/2018 Page 4 of 23 Memorandum statement of co-accused Dayali has been recorded by the police vide Ex.P-2 pursuant to which a gallon / bottle containing small quantity of kerosene oil has been seized vide Ex.P-3.

3. Statements of the witnesses were recorded under Section 161 of the CrPC and after due investigation, the appellant and other accused were charge-sheeted before the jurisdictional criminal court from where the case was committed to the Court of Additional Sessions Judge, Mungeli for hearing and disposal in accordance with law.

4. The prosecution in order to bring home the offence, examined as many as 17 witnesses PW-1 to PW-17 in support of its case and exhibited 28 documents Exs.P-1 to P-28C. Defence has not examined any witness in its support and not exhibited any document. Statements of the accused persons were recorded under Section 313 of the CrPC in which they abjured the guilt and pleaded innocence and false implication and claimed to be tried.

5. The trial Court after completion of trial and upon appreciation of oral and documentary evidence on record, by its impugned judgment, convicted and sentenced the appellant herein as mentioned in the opening paragraph of this judgment finding the dying declaration Ex.P-20 of deceased Chande Das proved and furthermore, on the basis of the statement of Chande Das recorded on 28-5-2014 treating the same as statement under Section 32(1) of the Evidence Act, which has been proved by Salik Ram Rajput (PW-17); however, acquitted co-accused Dayali (A-2) - father of the Cr.A.No.108/2018 Page 5 of 23 appellant herein, finding no evidence against him, which is sought to be challenged in this criminal appeal preferred under Section 374(2) of the CrPC by the appellant herein.

6. Mr. Dheerendra Pandey, learned counsel appearing for the appellant, would submit as under: -

1. Even if the dying declaration Ex.P-20 is taken as it is, it would not implicate the appellant herein, as the deceased had not named the appellant herein since he has used the word ' sala' (brother-in-law), whereas, as per the statement of Umed Das (PW-9), the appellant has two more brothers and the deceased has not named the appellant herein only and therefore the finding recorded by the trial Court convicting the appellant on the basis of dying declaration is liable to be discarded.

2. The statement given by deceased Chande Das on 28-5-2014 though has become dying declaration on his death on 3-6-

2014 in view of Section 162(2) of the CrPC & under Section 32(1) of the Evidence Act, but the statement dated 28-5-2014 given by deceased Chande Das does not relate to cause of death under Section 32(1) of the Evidence Act, therefore, it is not admissible in evidence. Learned counsel would alternatively submit that even otherwise, the statement of the deceased dated 28-5-2014 is with regard to involvement of brother-in-law of the deceased and the appellant being three brothers as per the statement of Umed Das (PW-9), the statement with regard to involvement at the most is attributed Cr.A.No.108/2018 Page 6 of 23 to brother-in-law of the deceased and has no remote connection or reference to the cause of death under Section 32(1) of the Evidence Act and would not be admissible under Section 32 of the Evidence Act. Therefore, the impugned judgment of conviction and order of sentence are liable to be set aside.

7. Mr. Sudeep Verma, learned State counsel, would submit that the dying declaration Ex.P-20 and the statement of deceased Chande Das recorded on 28-5-2014 have rightly been considered by the trial Court as dying declaration under Section 32(1) of the Evidence Act in view of the provisions contained in Section 162(2) of the CrPC and therefore the impugned judgment is well merited and as such, the appeal deserves to be dismissed as it has no force of law.

8. 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.

9. The trial Court has held the death of the deceased to be homicidal in nature relying upon the statements of Dr. Amit Pal (PW-7), who has primarily treated the deceased, and Dr. Prem Chand Banerjee (PW-12), who had performed postmortem over the body of the deceased vide postmortem report Ex.P-23, and held that cause of death was cardio respiratory failure resulting from infection at burn area due to deep burn. The said finding that death of the deceased was homicidal in nature is a finding of fact based on the evidence available on record, which is neither perverse nor contrary to the record and we hereby affirm the said finding.

Cr.A.No.108/2018

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10. The trial Court has convicted the appellant for offence under Section 302 of the IPC by recording following two findings: -

1. Dying declaration (Ex.P-20) dated 29-5-2014 recorded and proved by Dr. Shashi Kant Sahu (PW-10) inspires confidence.

2. Secondly, statement under Section 161 of the CrPC of deceased Chande Das recorded and proved by Head Constable Salik Ram Rajput (PW-17) on 28-5-2014 has become statement under Section 32(1) of the Evidence Act in light of Section 162(2) of the CrPC and it finds support from the confessional statement of co-accused Dayali (now acquitted) vide Ex.P-2.

11. Now, we will consider as to whether the two dying declarations relied upon by the trial Court are in accordance with law to sustain the conviction recorded by the trial Court.

Dying declaration recorded vide Ex.P-20 by Dr. Shashi Kant Sahu (PW-10)

12. Dying declaration Ex.P-20 was recorded on 29-5-2014 by Dr. Shashi Kant Sahu (PW-10) which states as under: -

Dying Declaration Date : 29/05/2014 Start Time 12:30 pm 1- rqEgkjk uke D;k gS %& pans nkl 2- rqEgkjk mez fdruk gS %& 37 o"kZ"

         4-    rqEgkjk firk dk uke D;k gS %& Lo- lqerk nkl
         5-    rqe jgrs dgka gks %&          xzke & pkdkisUMªk
         6-    rqEgkjk 'kknh dc gqbZ gS %&   12&13 lky gks x;k"""""""
         7-    rqe dSls ty x, %&             eSa dy 'kke dks llwjky jsgwVk x;k
                                             FkkA esjs lkyk us esjs Åij feV~Vh rsy
                                                                      Cr.A.No.108/2018

                                 Page 8 of 23

                                               Mkydj vkx yxk nhA
        8-     rwEgs igys cpkus dkSu vk;k %& eq>s irk ugha eS lM+d esa b/kj m/kj
                                               Hkkx jgk FkkA
        9-     rqEgkjk fdlh ds lkFk >xM+k rks ugha gqvk %& lkyk ds lkFk gqvk
                                                               FkkA
        10-    rqEgsa dqN vkSj dguk %&         D;k eSa cksywaA
        11-    rqEgsa D;ksa tyk;k %& esjs iRuh viuh ekbZdk esa jgrh gS eSa ysus dks
                                       x;k Fkk ifRu vkus dks euk dj fn;k rks eSus
                                       viuk tsoj xguk dks exk rks esjs lkys us
                                       feV~Vh rsy Mkydj vkx yxk nh A

                                                     Complite time 12:40 pm

13. A careful perusal of the aforesaid dying declaration would show that the deceased had only stated while answering question No.7 that his sala (brother-in-law) has poured kerosene oil over his body and set him on fire. While answering question Nos.9, 10 & 11 also, he has referred the word sala (brother-in-law) who has poured kerosene oil on his body and set him on fire.

14. Umed Das has been examined as prosecution witness No.9.

Though he has turned hostile, but in cross-examination, he has clearly stated that Devlal are three brothers and his uncle has two sons. As such, deceased Chande Das had five brothers-in-law, three sons of Dayali including the appellant herein and two cousins. Therefore, it is established on record that the appellant has two brothers and Sunita had three brothers including the appellant herein being brother-in-law / sala of deceased Chande Das.

15. Dr. Shashi Kant Sahu (PW-10) who has recorded dying declaration of the deceased on 29-5-2014 has been examined. He has clearly stated in his statement before the Court that during recording of dying declaration, the deceased had used the word sala, but he did not spell out the name of his sala / brother-in-law and did not Cr.A.No.108/2018 Page 9 of 23 specifically name any brother-in-law and did not elaborate how many brothers-in-law he had.

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

"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:--

(1) when it relates to cause of death.--When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question.

Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.

xxx xxx xxx"

17. 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 Maharashtra1 in which their Lordships have summarised the principles enumerated in Section 32(1) of the Evidence Act, 1 (1984) 4 SCC 116 Cr.A.No.108/2018 Page 10 of 23 including relating to "circumstances of the transaction":

"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:-

(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.

(2) The test of proximity cannot be too literally construed and practically reduced to a cut-and-dried formula of universal application so as to be confined in a straitjacket. Distance of time would depend or vary with the circumstances of each case. For instance, where death is a logical culmination of a continuous drama long in process and is, as it were, a finale of the story, the statement regarding each step directly connected with the end of the drama would be admissible because the entire statement would have to be read as an organic whole and not torn from the context. Sometimes statements relevant to or furnishing an immediate motive may also be admissible as being a part of the transaction of death. It is manifest that all these statements come to light only after the death of the deceased who speaks from death. For instance, where the death takes place within a very short time of the marriage or the distance of time is not spread over more than 3-4 months the statement may be admissible under Section 32.

(3) The second part of clause (1) of Section 32 is yet another exception to the rule that in criminal law the evidence of a person who was not being subjected to or given an opportunity of being cross-examined by the accused, would be valueless because the place of cross-

examination is taken by the solemnity and sanctity of oath for the simple reason that a person on the verge of death is not likely to make a false statement unless there is strong evidence to show that the statement was Cr.A.No.108/2018 Page 11 of 23 secured either by prompting or tutoring.

(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.

(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."

18. Recently, in the matter of Purshottam Chopra and another v. State (Government of NCT of Delhi)2, principles relating to recording of dying declaration and its admissibility and reliability were summed up in paragraph 21 as under: -

"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:-

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

21.2. The court should be satisfied that the declarant was in a fit state of mind at the time of making the statement; and that it was a voluntary statement, which was not the result of tutoring, prompting or imagination.

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.

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.

2 (2020) 11 SCC 489 Cr.A.No.108/2018 Page 12 of 23 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.

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.

21.7. As regards a burns case, the percentage and degree of burns would not, by itself, be decisive of the credibility of dying declaration; and the decisive factor would be the quality of evidence about the fit and conscious state of the declarant to make the statement.

21.8. If after careful scrutiny, the court finds the statement placed as dying declaration to be voluntary and also finds it coherent and consistent, there is no legal impediment in recording conviction on its basis even without corroboration."

19. Reverting to the facts of the case in light of the principles of law laid down by their Lordships of the Supreme Court in Sharad Birdhichand Sarda (supra) and Purshottam Chopra (supra), it has not been stated on behalf of the appellant that the deceased was not in fit state of mind or Ex.P-20 is suspicious document and he was not physically fit to give dying declaration, but the only submission that has been raised on behalf of the appellant is that it does not implicate the appellant herein, as brother-in-law of the deceased are three in number including the appellant herein and the word 'sala' (brother-in-law) has been used in the dying declaration and therefore taking the dying declaration as it is, benefit of doubt would go to the appellant.

Cr.A.No.108/2018

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20. True it is that in the entire dying declaration Ex.P-20, the deceased had only stated that his brother-in-law has poured kerosene oil on his body and set him on fire, it has been stated twice while answering question Nos.7 & 11 also and it has also been established by the prosecution witness No.9 Umed Das who is also related to deceased Chande Das. Umed Das (PW-9) has clearly stated that the appellant has two more brothers and his uncle had two sons and as such, deceased Chande Das had five brothers-in- law, three are sons of Dayali (co-accused) and two from brother of Dayali. Not only this, Dr. Shashi Kant Sahu, who has recorded dying declaration Ex.P-20, has been examined as PW-10 and on examination and cross-examination, he has clearly stated that the deceased did not name any brother-in-law in his dying declaration and he (this witness PW-10) did not make any endeavour to ask from the deceased as to which of his brothers-in-law have caused burn injuries to him, which was very much necessary to implicate the appellant for offence under Section 302 of the IPC taking Ex.P- 20 as dying declaration.

21. In order to convict a person for offence under Section 302 of the IPC, there must be clear evidence on record that he is the perpetrator and author of the crime. Merely stating that his brother- in-law has poured kerosene oil on his body and set him on fire, particularly when there are three brothers-in-law of the deceased, the appellant cannot be convicted assuming that he is the only brother-in-law who has poured kerosene oil on the body of the deceased and set him on fire. Suspicion, however grave it may be Cr.A.No.108/2018 Page 14 of 23 cannot take the place of proof.

22. It is the cardinal principle of criminal jurisprudence that " it is better that ten guilty persons escape, than that one innocent suffer"3 relied upon by the Supreme Court in the matter of Bijender alias Mandar v. State of Haryana4 in which their Lordships of the Supreme Court have also held that the doctrine of extending benefit of doubt to an accused, notwithstanding the proof of a strong suspicion, holds its fort on the premise that "the acquittal of a guilty person constitutes a miscarriage of justice just as much as the conviction of the innocent".

23. Therefore, on the principle laid down by the Supreme Court in Bijender alias Mandar (supra), the appellant is entitled to benefit of doubt, as it is not proved beyond doubt by the prosecution that it is the appellant who poured kerosene oil on the body of the deceased and set him to fire. As such, the prosecution has miserably failed to prove the dying declaration beyond reasonable doubt and it is held accordingly.

Statement of the deceased recorded under Section 161 of the CrPC

24. Now, the next incriminating evidence that has been found proved by the trial Court is statement of the deceased recorded under Section 161 of the CrPC, which has become dying declaration of the deceased after his death.

25. Head Constable Salik Ram Rajput (PW-17) recorded following 3 W. Blackstone, Commentaries on the Laws of England, Book IV, c. 27 (1897), p.

358. Ed.: see R. v. John Paul Lepage, 1995 SCC OnLine Can SC 19. 4 (2022) 1 SCC 92 Cr.A.No.108/2018 Page 15 of 23 statement of the deceased under Section 161 of the CrPC on 28-5- 2014, which is a part of the original record, as it is not exhibited by the trial Court and the deceased died on 3-6-2014: -

--- vkSj esjs llqj n;kyh ,oa lkyk nsoyky mQZ nq[khjke IykfLVd ds xsyu ls feV~Vh rsy fudky dj esjs Åij es <dsy fn;kA rc eS Hkkx jgk FkkA ihNs ls ekfpl yxk fn;k dkSu yxk;k eS ns[k ugha ik;k Hkkxrs&Hkkxrs eS vius xkao rjQ tk jgk Fkk fd js'ke eq>s Qksu fd;k rks eS mls Qksu ls crk;k fpjgqyk ds jksM es gwa] 108 ,Ecqysal ds Hkstus ds fy, cksyk Fkk rc 108 ,Ecwysal x;k ftlesa esjh HkkHkh jkts'ojh] eUuw ds lkFk vLirky eqxa syh vk;k gwaA esjk 'kjhj ds ihB] isV] gkFk nksuks] psgjk] xyk] cky] ty x;k gSA esjs llqj vkSj lkyk yksx eq>s ekjus ds fy;s esjs Åij feV~Vh rsy Mkydj vkx yxk;s gSA

26. Now, the question is, whether the trial Court is justified in taking the statement of the deceased injured recorded under Section 161 of the CrPC as dying declaration under Section 32(1) of the Evidence Act admitting the same into evidence and convicting the appellant on the basis?

27. Section 161 of the CrPC speaks about examination of witnesses by police and Section 161(3) states as under: -

"161. Examination of witnesses by police.--xxx (3) The police officer may reduce into writing any statement made to him in the course of an examination under this section; and if he does so, he shall make a separate and true record of the statement of each such person whose statement he records:

xxx xxx xxx"

28. Section 162 of the CrPC provides that a statement recorded by the police officer during investigation is inadmissible in evidence and the proper procedure to confront the witness with the contradictions when they are examined and then ask the Investigating Officer regarding these contradictions. However, Section 162(2) is an exception to Section 162(1) of the CrPC. Section 162(2) of the Cr.A.No.108/2018 Page 16 of 23 CrPC states as under: -

"162. Statements to police not to be signed: Use of statements in evidence.--xxx xxx xxx (2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of clause (1) of Section 32 of the Indian Evidence Act, 1872 (1 of 1872), or to affect the provisions of Section 27 of that Act.

Explanation.--An omission to state a fact or circumstance in the statement referred to in sub-section (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact."

29. As such, sub-section (2) of Section 162 of the CrPC incorporates a clear exception to what has been laid down in sub-section (1). The statement recorded by police under Section 161, falling within the provisions of clause (1) of Section 32 of the Evidence Act, thus, is clearly relevant and admissible in evidence. (See Pradeep Bisoi alias Ranjit Bisoi v. State of Odisha5.)

30. Section 32(1) of the Evidence Act relates to the statement made by a person before his death. Two categories of statements are made admissible in evidence and further made them as substantive evidence. They are: (1) his statement as to the cause of his death; (2) his statement as to any of the circumstances of the transaction which resulted in his death.

31. The Supreme Court in the matter of Patel Hiralal Joitaram v. State of Gujarat6 considering its earlier decisions on dying declaration held that under Section 32(1) of the Evidence Act, statement as to 5 AIR 2018 SC 4787 6 (2002) 1 SCC 22 Cr.A.No.108/2018 Page 17 of 23 the cause of death and statement as to any of the circumstances of the transaction which resulted in death are admissible in evidence and observed in paragraph 29 as under: -

"29. The above provision relates to the statement made by a person before his death. Two categories of statements are made admissible in evidence and further made them as substantive evidence. They are: (1) his statement as to the cause of his death; (2) his statement as to any of the circumstances of the transaction which resulted in his death. The second category can envelop a far wider amplitude than the first category. The words "statement as to any of the circumstances" are by themselves capable of expanding the width and contours of the scope of admissibility. When the word "circumstances" is linked to "transaction which resulted in his death" the sub-section casts the net in a very wide dimension. Anything which has a nexus with his death, proximate or distant, direct or indirect, can also fall within the purview of the sub-section. As the possibility of getting the maker of the statement in flesh and blood has been closed once and for all the endeavour should be how to include the statement of a dead person within the sweep of the sub-section and not how to exclude it therefrom. Admissibility is the first step and once it is admitted the court has to consider how far it is reliable. Once that test of reliability is found positive the court has to consider the utility of that statement in the particular case."

32. In the matter of Moti Singh and another v. State of Utter Pradesh 7, their Lordships of the Supreme Court have held that clause (1) of Section 32 of the Evidence Act makes a statement of a person who has died relevant only when that 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. In that case, their Lordships further held that when deceased therein Gaya Charan is 7 AIR 1964 SC 900 Cr.A.No.108/2018 Page 18 of 23 not proved to have died as a result of the injuries received in the incident, his statement cannot be said to be the statement as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death.

33. Furthermore, in the matter of Vinay D. Nagar v. State of Rajasthan8, it has been held that bar of Section 162 of the CrPC of proving the statement recorded by the police officer of any person during investigation however shall not apply to any statement falling within the provision of clause (1) of Section 32 of the Evidence Act, nor shall it affect Section 27 of the Evidence Act and observed in paragraph 24 as under: -

"15. We have analysed the statement of the deceased Kalu made to the police under Section 161 CrPC. We do not find that the statement of the deceased was in regard to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death. The statement is in regard to the accused's involvement in the abduction of a boy and has no remote connection or reference to the death of the deceased and thus would not be admissible under Section 32 of the Evidence Act. The statement recorded by the police although could be proved as there would not be any bar under Section 162 CrPC for proof of such statement, but it would not be admissible under Section 32 of the Evidence Act, and thus it could not have been relied upon by the prosecution to prove the motive for commission of the crime by the appellant-accused."

34. Similarly, in the matter of Sri Bhagwan v. State of Uttar Pradesh 9, it has been held that in exceptional circumstances, statement under Section 161 of the CrPC can be treated as dying declaration falling within the four corners of Section 32 of the Evidence Act, and 8 (2008) 5 SCC 597 9 (2013) 12 SCC 137 Cr.A.No.108/2018 Page 19 of 23 observed in paragraph 24 as under: -

"24. As far as the implication of Section 162(2) CrPC is concerned, as a proposition of law, unlike the excepted circumstances under which Section 161 CrPC statement could be relied upon, as rightly contended by the learned senior counsel for the respondent, once the said statement though recorded under Section 161 CrPC assumes the character of dying declaration falling within the four corners of Section 32(1) of the Evidence Act, then whatever credence that would apply to a declaration governed by Section 32(1) should automatically deemed to apply in all force to such a statement though was once recorded under Section 161 CrPC. The above statement of law would result in a position that a purported recorded statement under Section 161 of a victim having regard to the subsequent event of the death of the person making the statement who was a victim would enable the prosecuting authority to rely upon the said statement having regard to the nature and content of the said statement as one of dying declaration as deeming it and falling under Section 32(1) of Evidence Act and thereby commend all the credence that would be applicable to a dying declaration recorded and claimed as such."

35. In the matter of Laxmi (Smt) v. Om Prakash and others10, the Supreme Court relying upon its earlier decisions in the matters of Dalip Singh v. State of Punjab11 and Munnu Raja v. State of M.P. 12, has held that a dying declaration made to a police officer is admissible in evidence, however, the practice of dying declaration being recorded by an investigating officer has been discouraged as the investigating officers are naturally interested in the success of the investigation, and observed in paragraph 30 as under: -

"30. A dying declaration made to a police officer is admissible in evidence, however, the practice of dying declaration being recorded by an investigating officer has 10 (2001) 6 SCC 118 11 (1979) 4 SCC 332 12 (1976) 3 SCC 104 Cr.A.No.108/2018 Page 20 of 23 been discouraged and this Court has urged the investigating officers to avail the services of a Magistrate for recording dying declaration if it was possible to do so and the only exception is when the deceased was in such a precarious condition that there was no other alternative left except the statement being recorded by the investigating officer or the police officer, later on relied on as dying declaration. In Munnu Raja v. State of M.P.9 this Court observed: (SCC p.108, para 11) "Investigating officers are naturally interested in the success of the investigation and the practice of the investigating officer himself recording a dying declaration during the course of an investigation ought not to be encouraged."

The dying declaration recorded by the investigating officer in the presence of the doctor and some of the friends and relations of the deceased was excluded from consideration as the failure to requisition the services of a Magistrate for recording the dying declaration was not explained. In Dalip Singh v. State of Punjab8 this Court has permitted dying declaration recorded by investigating officer being admitted in evidence and considered on proof "that better and more reliable methods of recording dying declaration of injured person" were not feasible for want of time or facility available. It was held that a dying declaration in a murder case, though could not be rejected on the ground that it was recorded by a police officer as the deceased was in a critical condition and no other person could be available in the village to record the dying declaration yet the dying declaration was left out of consideration as it contained a statement which was a bit doubtful."

36. Reverting to the facts of the case in light of the aforesaid principles of law laid down by their Lordships of the Supreme Court qua the dying declaration under Section 32(1) of the Evidence Act, particularly when statement under Section 161 of the CrPC has to be treated as dying declaration and in view of Section 162(2) of the CPC it can be treated as dying declaration when statement under Section 161 of the CrPC relates to cause of death and furthermore, Cr.A.No.108/2018 Page 21 of 23 that it is admissible in evidence in view of Section 162(2) of the CrPC, but the prosecution has to satisfy that it has been recorded in accordance with law. In the instant case, the statement of deceased Chande Das, who died on 3-6-2014, recorded on 28-5- 2014, though not exhibited, would show that it only states that the appellant herein and his father Dayali had poured kerosene oil on the body of the deceased and set him on fire and furthermore, in last part of the statement of the deceased recorded under Section 161 of the CrPC, he has only stated that his brother-in-law has poured kerosene oil on his body, it is not clear as to which brother- in-law the deceased was pointing out, as the deceased had three brothers-in-law. As such, we do not find that the statement of the deceased under Section 161 of the CrPC recorded on 28-5-2014, which has been treated by the learned trial Court as statement under Section 32(1) of the Evidence Act relating to the cause of his death or as to any of the circumstances of the transaction which resulted in his death. At the most, the statement of the deceased recorded on 28-5-2014 is with regard to the involvement of his unnamed brother-in-law and his father-in-law, who has been acquitted, and the statement dated 28-5-2014 has no connection or reference to his death. Even it has been recorded by the police officer (Head Constable) on 28-5-2014 and furthermore, it has not been tendered into evidence by the prosecution except the self- serving statement of Salik Ram Rajput (PW-17) and therefore though the statement recorded by the police could be proved to be dying declaration in view of the exception carved out under Section Cr.A.No.108/2018 Page 22 of 23 162(2) of the CrPC, but it would not be safe to convict the appellant on the basis of Section 161 statement dated 28-5-2014 treated as dying declaration after the death of Chande Das, more particularly for the reason that in question No.66 put to the accused under Section 313 of the CrPC, it has only been asked that Chande Das had given statement on 28-5-2014, but nothing further has been asked which was very much necessary to use the said document against the appellant.

37. The trial Court has also taken the aid of Ex.P-2 - confessional statement of the co-accused, to convict the appellant. In the matter of Haricharan Kurmi & Jogia Hajam v. State of Bihar13 as well as Ram Chandra and another v. State of Uttar Pradesh14 it has been held by their Lordships of the Supreme Court that confessional statement of a co-accused can only be taken into consideration but it was not in itself a substantive evidence. The aforesaid two decisions have been followed with approval in light of Section 30 of the Evidence Act by the Supreme Court in the matter of Subramanya v. State of Karnataka15. In that view of the matter, reliance placed upon the memorandum of the co-accused, who has now been acquitted, is of no help to the prosecution.

38. In view of the aforesaid analysis, we are of the opinion that the conviction recorded by the trial Court on the basis of dying declaration Ex.P-20 cannot be sustained and furthermore, statement of the deceased recorded under Section 161 of the CrPC 13 AIR 1964 SC 1184 14 AIR 1957 SC 381 15 Criminal Appeal No.242 of 2022, decided on 13-10-2022 Cr.A.No.108/2018 Page 23 of 23 on 28-5-2014 treated as dying declaration under Section 32(1) of the Evidence Act does not relate to cause of death of the deceased, particularly when the statement has not been tendered into evidence nor it has been put to the accused under Section 313 of the CrPC specifically except question No.66 and therefore that piece of evidence cannot be used against the appellant. As such, conviction and sentences imposed upon the appellant under Section 302 of the IPC are liable to be quashed and are hereby quashed. The appellant is acquitted of the said charge. He is in jail. He be released forthwith if not required to be detained under any other process of law.

39. The appeal is allowed accordingly.

40. While parting with record, we express our gratitude to Mr. D.K. Gwalre, Advocate, who in short notice submitted a written note which helped us in deciding this appeal.

              Sd/-                                              Sd/-
       (Sanjay K. Agrawal)                             (Deepak Kumar Tiwari)
             Judge                                             Judge

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