Chattisgarh High Court
State Of Chhattisgarh vs Gorelal 44 Cra/276/2011 Nand Kumar Soni ... on 24 January, 2018
Author: Ram Prasanna Sharma
Bench: Prashant Kumar Mishra, Ram Prasanna Sharma
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
ACQA No. 224 of 2010
• State of Chhattisgarh
---- Appellant
Versus
• Gorelal S/o Banshilal Sahu R/o Vill. Kuamalgi, Ps Kund, Kawrdha
---- Respondent
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For Appellant/State Mr. Arvind Kumar Dubey, Panel Lawyer
For respondent Mr. Anurag Dayal Shrivastava, Advocate.
Hon'ble Shri Prashant Kumar Mishra,
Hon'ble Shri Ram Prasanna Sharma, JJ
Oral Judgment
Per Ram Prasanna Sharma, J
(24-01-2018)
1. This acquittal appeal is preferred against the judgment dated 13-3- 2003 passed by the Additional Sessions Judge (FTC), Kawardha (for short, "the trial Court") in Sessions Trial No. 30 of 2001 wherein the trial Court acquitted the respondent of the charges under Section 302 in alternate Section 304-B of the IPC.
2. In the present case, name of the deceased is Ambika Bai who was wife of the respondent. It is alleged that both were living at Darripara locality of city Kawardha. On 6-8-1999 at about 1.00 pm Ambika Bai suffered burn injuries. As per prosecution case, respondent harassed her in connection with demand of dowry and 2 in alternate it is alleged that he poured kerosene oil on the body of the deceased and lit the match-stick causing severe burn injuries to her. She was admitted in Government hospital at Kawardha and thereafter she was shifted to Meo Hospital, Nagpur. The incident took place on 6-8-1999 and she succumbed to the injuries on 24-8- 1999 at Meo Hospital, Nagpur during the course of treatment. Her statement under Section 161 of Cr.P.C., was recorded by Additional Sub-Inspector B.S. Thakur (DW/1) as per Ex. D/1 and upon application of Ramesh Sahu (PW/1), who is father of the deceased one dying declaration was recorded by Executive Magistrate S.P. Barde on 22-8-1999 at Nagpur. Merg intimation was recorded as per Ex.P/6 and first information report was recorded as per Ex.P/2 and the matter was investigated. After completion of investigation charge-sheet was filed against the respondent. Respondent did not plead guilty, therefore, trial was conducted. After examination of prosecution witnesses, statement of respondent under Section 313 of Cr.P.C., was recorded and after hearing both the parties, the trial Court acquitted the respondent as mentioned above.
3. Learned State counsel submits as under:
i) Trial Court has disbelieved the version of Ramesh Sahu (PW/1), who is father of deceased and Dhaan Bai (PW/2), who is mother of the deceased, who have categorically supported the version of prosecution and same ought to have been acted upon;
ii) Dying declaration recorded by the Executive Magistrate was legally admissible evidence because deceased was conscious and fit at the time of recording the dying declaration, but the same is not relied upon by the trial 3 Court ignoring the settled principles of law;
iii) It is proved by the statement of Dr. A.K. Mukherjee (PW/10) that deceased died unnatural death, therefore, version of prosecution witnesses and dying declaration are sufficient to bring home the guilt of the respondent.
4. On the other hand, learned counsel for the respondent submits that the finding arrived at by the trial Court is based on settled principles of law and the trial Court has given cogent reasons for coming to the conclusion of acquittal and same is not liable to be interfered while invoking jurisdiction of the appeal.
5. We have heard learned counsel for the parties and perused the record.
6. The first question for consideration is whether this Court can disturb the finding of acquittal recorded by the trial Court and whether any limitation should be placed upon such power.
7. In Shoe Swarup vs. King Emperor reported in AIR 1934 Privy Council 227, it is held that Criminal Procedure Code give to the High Court full power to review at large the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be reversed. No limitation should be placed upon that power. Again in Athley Vs. State of UP reported in AIR 1955 SC 807, it is held that "In our opinion, it is not correct to say that unless the appellate Court in an appeal under Section 417, Criminal Procedure Code came to the conclusion that the judgment of acquittal under appeal was perverse it could not set aside that order. It has been laid down by 4 this court that it is open to the High Court on an appeal against an order of acquittal to review the entire evidence and to come to its own conclusion. Again in Sanwat Singh Vs. State of Rajasthan reported in AIR 1961 SC 715, it is observed that there was no difficulty in applying the principles laid down by the Privy Council and accepted by the Supreme Court. The appellate Court not only shall bear in mind the principles laid down by the Privy Council but also mist give its clear reason for coming to the conclusion that the order of acquittal was wrong.
8. The foregoing discussion yields the following results: (1) an appellate Court has full power to review the evidence upon which the order of acquittal is founded; (2) the principles laid down in Sheo Swarup Case afford a correct guide for the appellate court's approach to a case in disposing of such an appeal; and (3) the different phraseology used in the judgments of this Court, such as (I) "substantial and compelling reasons", (ii) "good and sufficiently cogent reasons", and (iii) "strong reasons" are not intended to curtail the undoubted power of an appellate court in an appeal against acquittal to review the entire evidence and to come to its own conclusion; but in doing so it should not only consider every matter on record having a bearing on the questions of fact and the reasons given by the court below in support of its order of acquittal in its arriving at a conclusion on those facts, but should also express those reasons in its judgment, which lead it to hold that the acquittal was not justified.' Again in Animireddy Venkata Ramana 5 and Others Vs. Public Prosecutor, High Court of Andhra Pradesh reported in (2008) 5 SCC 368, it is held that when there were very serious infirmities in the judgment of the trial Court both in regard to the legal propositions as also appreciation of evidence and there were non-consideration of material facts and consideration of irrelevant facts, the appellate court's interference with the judgment of acquittal would be warranted.
9. From the above principles it is clear that the appellate Court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded.
10. To substantiate the charge, prosecution has examined as many as 13 witnesses. To nullify the charge, defence side has examined one witness.
11. The respondent is charged with offence under Section 304-B of the IPC which says that when any woman dies otherwise than under normal circumstances within seven years of her marriage and soon before she was subjected to cruelty or harassment by husband or his relative in connection with any demand of dowry, his act will be punishable under this Section.
12. The first point for consideration is whether any demand of dowry is made by the respondent.
13. Definition of dowry as defined in Section 2 of Dowry Prohibition Act, 1961 reads as under:
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"2. Definition of 'dowry'. - In this Act, "dowry" means any property or valuable security given or agreed to be given either directly or indirectly -
(a) by one party to a marriage to the other party to the marriage; or
(b) by the parent of either party to a marriage or by any other person, to either party to the marriage or to any other person, at or before (or any time after the marriage) (in connection with the marriage of the said parties, but does not include) dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies.
Explanation II - The expression "valuable security" has the same meaning as in Section 30 of the Indian Penal Code."
14. Ramesh Sahu (PW/1), who is father of the deceased deposed that no demand was made at the time of marriage. As per his version, he gave Rs.4000/- to the father of the respondent for some household work. He further deposed that he also gave Rs.2000/- to the respondent for his business purpose. PW/2 Dhaan Bai, who is mother of the deceased stated that at the time of delivery of her daughter respondent demanded Rs.3000/- from her, but she did not give him money.
15. From the entire evidence of both the witnesses there is nothing on record to show that any demand of dowry is made to them. From the entire evidence adduced by the prosecution it is not established that respondent demanded any dowry from the deceased or her parents. From the statements of Ramesh Sahu (PW/1) and Dhaan Bai (PW/2), it is also not established that deceased was subjected to cruelty or harassment in connection with any demand of dowry. From the statements of both the witnesses, it is established that they are residents of Kampti Road, Nagpur (MH) while the deceased and respondent were living at a locality in the city of 7 Kawardha (CG). It is not a case that both witnesses were living in the locality of the respondent.
16. PW/4 Natthu Lal, is a person who is naighbour of the deceased and as per his statement, respondent and deceased were living together peacefully and he has neither seen nor heard of any quarrel between them. From the statement of this witness harassment of the deceased is not substantiated and looking to the evidence we are of the view that it is not a case of harassment for dowry.
17. Now the point for consideration is whether in the facts and circumstances of the case, it can be held that respondent committed murder of his wife. The incident took place within four corners of the house of the respondent and that too in the mid-night and same is place of secrecy, therefore, it will be extremely difficult for prosecution to lead ocular evidence as to what happened in the house. The date of incident is 6-8-1999 and the statement of the deceased was recorded by Asst. Sub inspector B.S. Thakur (DW/1) as per Ex.D/1 on 7-8-1999 in which deceased stated that due to non-supply of electricity she lit a chimney and kept the same behind her cot and at night corner of her saree caught fire by chimney as a result of which she sustained burn injuries. She further stated that her husband was sleeping inside the room and when she cried he woke up and poured water over her body and called his neighbour immediately and with the help of neighbour he admitted her in the Government Hospital, Kawardha. This statement was recorded on the next day of incident i.e., 7-8-1999. This version is supported by 8 Ramesh Sahu (PW/1) who is father of the deceased and as per his statement at para 27 & 29, deceased informed him that she caught fire accidentally by chimney. As per version of this witness at para 32, after two days of her admission in Meo Hospital, Nagpur, she informed him that it is the respondent who poured kerosene on her body and burnt her. He further deposed that he filed an application in Police Station and thereafter statement of the deceased was recorded by Tahsildar/Executive Magistrate. S.P. Barde (PW/8) was Executive Magistrate and he deposed that deceased made declaration regarding pouring of kerosene and burnt her by the respondent.
18. In the matter of State of Gujrat vs Jayrajbhai Punjabhai Varu 1 , it has been held by the Hon'ble Supreme Court as under:
"15. The courts below have to be extremely careful when they deal with a dying declaration as the maker thereof is not available for the cross- examination which poses a great difficulty to the accused person. A mechanical approach in relying upon a dying declaration just because it is there is extremely dangerous. The court has to examine a dying declaration scrupulously with a microscopic eye to find out whether the dying declaration is voluntary, truthful, made in a conscious state of mind and without being influenced by the relatives present or by the investigating agency who may be interested in the success of investigation or which may be negligent while recording the dying declaration".
1 (2016) 14 SCC 151 9
19. Again in the matter of Mehiboobsab Abbasabi Nadaf vs. State of Karnataka2, it has been held by Hon'ble the Apex Court as under:
"Consistency in the dying declaration is the relevant factor for placing full reliance thereupon. In this case, the deceased herself had taken contradictory and inconsistent stand in different dying declarations. They, therefore, should not be accepted on their face value. Caution, in this behalf, is required to be applied".
20. Again in the matter of Mohd. Arshad vs. State of Maharashtra3 it has been held by Hon'ble the Apex Court as under: "21. So far as the appeal preferred by Mohammed Arshad is concerned, we are of the opinion that he is entitled to benefit of doubt. He was not named in the first two dying declarations. He was named only in the third dying declaration. No injury by stick was found on the back of the deceased. The motive ascribed as against him did not find place in the first information report. Evidently, the deceased made improvement in his third dying declaration before the police officer".
21. Again in the matter of Samadhan Khudaka Koli vs. State of Maharashtra4 it has been held by Hon'ble the Apex Court as under:
"18. Consistency in the dying declaration, therefore, is a very relevant factor. Such a relevant factor cannot be ignored. When a contradictory and inconsistent stand is taken by the deceased herself in different dying declarations, they should not be accepted on their face value. In any event, 2 (2007) 13 SCC 112 3 2006 12 SCC 293 4 (2008) 16 SCC 705 10 as a rule of prudence, corroboration must be sought from other evidence brought on record. . In Mehiboobsab Abbasabi Nadaf vs. State of Karnataka [2007 (9) SCALE 473] where four dying declarations were recorded, this Court opined:
"7 Conviction can indisputably be based on a dying declaration. But, before it can be acted upon, the same must be held to have been rendered voluntarily and truthfully. Consistency in the dying declaration is the relevant factor for placing full reliance thereupon. In this case, the deceased herself had taken contradictory and inconsistent stand in different dying declarations. They, therefore, should not be accepted on their face value. Caution, in this behalf, is required to be applied."
22. Recently, in the matter of Mukesh and another vs. State for NCT of Delhi and others5 it has been observed as under.
"31. Multiple Dying Declarations: In cases where there are more than one dying declarations, the Court should consider whether they are consistent with each other. If there are inconsistencies, the nature of the inconsistencies must be examined as to whether they are material or not. In cases where there are more than one dying declaration, it is the duty of the Court to consider each one of them and satisfy itself as to the voluntariness and reliability of the declarations. Mere fact of recording multiple dying declarations does not take away the importance of each individual declaration. Court has to examine the contents of dying declaration in the light of various surrounding facts and 5 (2017) 6 SCC 1 11 circumstances".
32. In Amol Singh v. State of Madhya Pradesh 6 (2008) 5 SCC 468, while discarding the two inconsistent dying declarations, laid down the principles for consideration of multiple dying declarations as under:-
"13. Law relating to appreciation of evidence in the form of more than one dying declaration is well settled. Accordingly, it is not the plurality of the dying declarations but the reliability thereof that adds weight to the prosecution case. If a dying declaration is found to be voluntary, reliable and made in fit mental condition, it can be relied upon without any corroboration. The statement should be consistent throughout. If the deceased had several opportunities of making such dying declarations, that is to say, if there are more than one dying declaration they should be consistent. (See Kundula Bala Subrahmanyam v. State of A.P. (1993) 2 SCC 684). However, if some inconsistencies are noticed between one dying declaration and the other, the court has to examine the nature of the inconsistencies, namely, whether they are material or not. While scrutinizing the contents of various dying declarations, in such a situation, the court has to examine the same in the light of the various surrounding facts and circumstances."
33.In Ganpat Mahadeo Mane v. State of Maharashtra (1993) Supp.(2) SCC 242, there were three dying declarations. One recorded by the doctor; the second recorded by the police constable and also attested by 6 (2008) 5 SCC 468 12 the doctor and the third dying declaration recorded by the Executive Magistrate which was endorsed by the doctor. Considering the third dying declaration, this Court held that all the three dying declarations were consistent and corroborated by medical evidence and other circumstantial evidence and that they did not suffer from any infirmity.
34. In Lakhan v. State of M.P. (2010) 8 SCC 514, Hon'ble the Apex Court considered a similar situation where in the first dying declaration given to a police officer was more elaborate and the subsequent dying declaration recorded by the Judicial Magistrate lacked certain information given earlier. After examining the contents of the two dying declarations, this Court held that there was no inconsistency between two dying declarations and non-mention of certain features in the dying declarations recorded by the Judicial Magistrate does not make both the dying declarations inconsistent."
23. Now the core issue for our consideration is whether in the facts and circumstances of the case, declaration made before the Executive Magistrate can be acted upon. We have to be extremely careful while dealing with dying declaration as the maker thereof is not available for cross examination which poses a great difficulty to the accused person. A mechanical approach in relying upon a dying declaration just because it is there is extremely dangerous. In the present case, first statement was made by the deceased before Asst. Sub Inspector B.S Thakur (DW/1) as per Ex.D/1 in which she stated that accidentally she sustained burn injuries. Her statement was recorded on the next day of the incident and same is made by her as to cause of burn injuries. Though it may be said that the 13 same is not made under expectation of death but when death is caused by burn injuries, her statement to the Police Officer under Section 161 of the Cr.P.C., will be treated as dying declaration.
24. From the evidence of prosecution side, it is established that immediately after the incident, respondent made attempt to save life of the deceased and just after the incident he called neighbours, took the deceased and admitted her in Government Hospital and when she was shifted to Meo Hospital, Nagpur from Government Hospital, Kawardha, respondent remained present there till her death. The conduct of the respondent is indicative of the fact that he is not culprit. First dying declaration is made on the next day of the incident and second dying declaration was recorded at the instance of the father of the deceased after 16 days of the incident i.e., 22-8- 1999 and in between there were chances of tutoring the deceased. True it is that conviction can be indisputably based on a dying declaration but before it can be acted upon, the same must be held to have been rendered in consistency. Consistency in dying declaration is the relevant factor for placing full reliance thereupon. In the present case, deceased had stated contradictory and inconsistent version in different dying declarations. It is settled principles of law that if any one speaks differently in different stage, it is difficult to be accepted on its face value.
25. Considering the law laid down by the Apex Court and looking to the surrounding circumstances that respondent has treated the deceased right from beginning and inconsistency in dying 14 declaration which is recorded after 16 days of the incident, it would not be safe for us to act upon dying declaration recorded by the Magistrate and the finding of the trial Court is not liable to be disturbed.
26. Accordingly, the appeal fails and is hereby dismissed.
Sd/- Sd/-
Judge Judge
(Prashant Kumar Mishra) (Ram Prasanna Sharma)
Raju
15
HEAD NOTE
1) When the deceased had taken contradictory and inconsistent
in different dying declarations it should not be accepted on its face value.
2) For establishing offence under Section 304-B of IPC demand of dowry should be established as defined in Section 2 of Dowry Prohibition Act, 1961 and and it should also be established that cruelty and harassment was done soon before death of the deceased and there was live link between harassment and death of the deceased.
3) Amount given to husband or in-laws for some business purpose cannot be termed as dowry and wears and tears of daily life between husband and wife cannot be termed as cruelty or harassment.
4) Material witness deposing different version in different stage is not worthy of credence.
5) The High Court as appellate Court has full power to review, re-
appreciate and reconsider the evidence upon which the order of acquittal is founded.
1 tgkWa e`rd }kjk nks e`R;q dkfyd dFku ,d nwljs dk [k.Mu djrs gq, rFkk ,d&nwljs ls vlaxr fd;s tkrs gSa] ,Sls e`R;q dkfyd dFku dks blh :i esa Lohdkj ugha fd;k tk ldrk A 2 Hkkjrh; n.M lafgrk 1860 dh /kkjk 304&ch ds vijk/k dks izekf.kr djus ds fy, ;g vfuok;Z gS fd ngst izfr"ks/k vf/kfu;e 1961 dh /kkjk&2 esa ifjikf"kr ngst dh ekax fl) dh tkuh pkfg;s rFkk ;g Hkh fl) fd;k tkuk pkfg;s dh e`R;q ds Bhd iwoZ dzwjrk ,oa ijs'kku fd;s tkus dh thfor J`a[kyk fo|eku Fkh A 3 ifr ;k ifRu ds ukrsnkj dks O;olk; ds iz;kstu ls nh tkus okyh jkf'k ngst ugha gS rFkk ifr ,oa ifRu ds e/; gksus okys nSfud ikfjokfjd >xM+s dzwjrk ;k ijs'kku djus dh Js.kh esa ugha vkrs gSa A 4 tgkWa rkfRod lk{kh fofHkUu izdze ij fHkUu&fHkUu dFku djrs gSa rks ,Sls lk{kh fo'olfu;rk ds ;ksX; ugha gS A 5 mPp U;k;ky; dks vihyh; U;k;ky; ds rkSj ij mPp U;k;ky; ds ikl lk{; ftl ij nks"keqfDr vk/kkfjr gS] dh leh{kk iquZewY;kadu rFkk ml ij iquZfopkj djus dh iwjh 'kfDr gS A By Order (R. SATYANARAYANA RAJU) Deputy Registrar