Chattisgarh High Court
Smt.Janki Bai Patel vs State Of Chhattisgarh on 30 January, 2023
Author: Sanjay K. Agrawal
Bench: Sanjay K. Agrawal
1
AFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Criminal Appeal No. 747 of 2013
Judgment Reserved on : 04.01.2023
Judgment delivered on : 30.01.2023
Smt. Janki Bai Patel, W/o. Subhash Chand Patel, Aged About 47
Years, R/o. Village & Post. Marghatti, Police Station- Jaijaipur, Tahsil
Sakti, District Janjgir-Champa, Chhattisgarh
---Appellant
Versus
State Of Chhattisgarh, Through Police Station -Jaijaipur, District
Janjgir-Champa, Chhattisgarh
---Respondent
CRA No. 706 of 2013
1. Subhash Chand Patel, S/o. Tanik Chand Patel, Aged About 52 Years.
2. Khagraj Patel, S/o. Subhash Chand Patel, Aged About 28 Years.
Both Are R/o. Village & Post Marghatti, Police Chauki Hasaud, Police
Station- Jaijaipur, Tahsil Sakti, District Janjgir Champa, Chhattisgarh
---- Petitioners
Versus
State Of Chhattisgarh, Through the Police Station- Jaijaipur, District
Janjgir Champa, Chhattisgarh
---- Respondent
For Appellants : Mr. Roop Naik, Advocate
For State-Respondent : Mr. Sudeep Verma, Dy. Govt. Advocate
Hon'ble Shri Justice Sanjay K. Agrawal
Hon'ble Shri Justice Rakesh Mohan Pandey
2
C.A.V Judgment
Sanjay K. Agrawal, J.
1. In both the appeals, since common question of fact and law is involved and have been arisen from one Sessions Trial No.71/2012, therefore, both the appeals have been clubbed together, heard together and are being decided by this common judgment.
2. Criminal Appeal No.747 of 2013 has been filed by the sole appellant, namely Smt. Janki Bai under Section 374(2) of Cr.P.C. questioning the legality, validity and correctness of impugned judgment of conviction and order of sentence dated 25.07.2013, whereby she has been convicted and sentenced to undergo as under :
CONVICTION SENTENCE U/s. 498(A) of I.P.C. R.I. for 3 years with fine of Rs.10,000/-, in default of payment of fine, additional R.I. for 6 months.
U/s. 302 of I.P.C. Life imprisonment with fine of Rs.10,000/-, in default of payment of fine, additional R.I. for 6 months.
3. Criminal Appeal No.706 of 2013 has been filed by the appellants, namely Subhash Chand Patel and Khagraj Patel under Section 374(2) of Cr.P.C. questioning the legality, validity and correctness of the impugned judgment of conviction and 3 order of sentence dated 25.07.2013, whereby they have been convicted and sentenced as under :
CONVICTION SENTENCE
U/s. 498(A) of I.P.C. R.I. for 3 years with fine of
Rs.10,000/- each, in default of
payment of fine, additional R.I. for 6
months.
4. Case of the prosecution, in short, is that on 27.12.2011 at 6:00 A.M. at village Marghatti, P.S. Jaijaipur, District Janjgir- Champa, Janki Bai (mother-in-law), Subhash Patel (father-in- law) and Khagraj Patel (husband) have treated the deceased Khemkumari with cruelty and quarreled with her and in furtherance of common intention poured kerosene oil on her body and set her ablaze by which she suffered grievous burn injury and ultimately died on 30.01.2012, which is within seven years from the date of marriage; thereby, they committed aforesaid offences.
5. On information being given, father of the deceased Khemkumari namely Prem Singh Patel (PW-1) reached immediately to village Marghatti and in the meanwhile, Khemkumari was escorted for medical treatment to Asharfi Devi Mahila Hospital, Raigarh, where Dr. Rupendra Patel (PW-8) examined injured Khemkumari and advised her family members to take her to Fortis Jindal Hospital, Raipur for better medical treatment. The initial treatment memo is Ex.P-12 and meanwhile Dr. Rupendra 4 Patel (PW-8) has also informed Police Station- City Kotwali, Raigarh regarding the incident vide Ex.P-11 dated 27.12.2011 and on receiving the information, the police recorded statement of the deceased Khemkumari under Section 161 of Cr.P.C. vide Ex.P-26 and also recorded the statement of her father namely Prem Singh Patel (PW-1) vide Ex.P-27. On the same date, the police issued a memo requesting the Sub Divisional Officer, Raigarh to record the dying declaration of injured Khemkumari vide Ex.P-28. Consequently, the Executive Magistrate/ Tahsildar namely Amit Kumar Shrivastava (PW-16) has recorded dying declaration of the injured Khemkumari vide Ex.P-14 in presence of two independent witnesses namely Jitendra Kumar (PW-9) and Ramnarayan Patel (not examined).
6. It is further case of the prosecution that, in the mean time, on 27.12.2011, Police Station Kotra Road, Raigarh, registered FIR at Zero number vide Ex.P-29 and on the next date, Police Station Jaijaipur, District Raigarh has registered FIR bearing Crime No.276/2011 vide Ex.P-31 against the present appellants and on the same date, prepared the property seizure memo vide Ex.P-9 and seized the incriminating articles from the spot. On 29.12.2011, Police Station Jaijaipur has prepared a 'Mauka Panchnama' of the spot vide Ex.P-6 and examined Nutan Patel (PW-2) and Lalmani Patel (PW-3) as independent witness of the same. Furthermore, on advice of Dr. Rupendra Patel (PW-8), father of Khemkumari namely Prem Singh Patel (PW-1) 5 escorted her daughter to Fortis Jindal Hospital, Raigarh, where she was admitted and treated by Dr. Arvind Kumar Singhal (PW-17) from 27.12.2011 to 28.01.2012. The medical treatment tickets of Khemkumari of Fortis Jindal Hospital have been brought on record as Ex.P-30. Thereafter, since the medical condition of the injured Khemkumari could not much improve, as expected and huge financial burden is being caused to father of the injured Prem Singh Patel (PW-1), the family members of Khemkumari decided to get her discharged from the Hospital on 28.01.2012 and after discharge, brought her back to their house at village Gorra, where she succumbed to death on account of burn injuries on 30.01.2012.
7. Thereafter, inquest was conducted by Police Station Kotra Road vide Ex.P-2 and registered a merg intimation at Zero number on 30.01.2012 vide Ex.P-10 and later on registered Merg No.08/2012 ws recorded by Police Station Jaijaipur vide Ex.P- 17 on information given by Police Station Kotra Road, Raigarh. Thereafter, on the recommendation of Panchas, the dead body of Khemkumari was sent for post-mortem which was conducted by Dr. S.Lakda (PW-12) who proved his post-mortem report vide Ex.P-18 and disclosed the cause of death as septic shock due to burn injuries.
8. On due investigation and upon recording the statements of the prosecution witnesses, the Investigation Officer N.S.Rajput (PW-14) charge-sheeted the appellants before the criminal court 6 and ultimately it was committed to the Court of Sessions for trial in accordance with law, in which the appellants abjured their guilt and entered into defence and examined Smt. Sita Patel as DW-1.
9. In order to bring home the offence, prosecution examined as many as 19 witnesses and exhibited 33 documents, Exs.P-1 to P-33; whereas the defence has examined none, but exhibited the documents Exs.D-1 & D-4.
10. The trial Court, after appreciation of oral and documentary evidence on record, convicted and sentenced the appellants herein as mentioned in the opening paragraph of this judgment, against which the present appeals have been preferred.
11. Mr. Roop Naik, learned counsel for the appellants would submit as under :
(i) That the appellant Janki Bai has mainly been convicted on the basis of dying declaration Ex.P-14, which has not been proved in accordance with law. In the dying declaration, there is no mention that at the time of making dying declaration, the deceased was in a fit state of mind and there is no certificate of any Doctor regarding the mental and physical fitness of the deceased to make dying declaration. Therefore, the dying declaration (Ex.P-14) is suspicious and unreliable document and it would be unsafe to convict on the basis of said dying declaration (Ex.P-14).7
(ii) That, the dying declaration of the deceased Khemkumari (Ex.P-14) has been recorded by the Executive Magistrate Amit Shrivastava (PW-16), but there is no official communication to the said Executive Magistrate to record the dying declaration of the deceased, therefore, it is inadmissible in evidence and liable to be rejected.
(iii) That, the dying declaration of the deceased Khemkumari has been recorded by the Executive Magistrate before the registration of the FIR on 27.12.2011 at 3:00 P.M. whereas the FIR has been registered against the appellants on 27.12.2011 by Police Station Kotra Road at Zero number vide Ex.P-29 i.e. after recording of dying declaration and therefore the dying declaration is inadmissible in evidence and it is unreliable as well.
(iv) That, the deceased Khemkumari suffered burn injury on 27.12.2011 and died on 30.01.2012, after a period of more than one month, as she was got discharged by her father Prem Singh Patel (PW-1) and other relatives of the deceased against the medical opinion, which is apparent from the statement of the father (PW-1) and discharge was done on account of financial constraints and since the deceased died on account of not getting proper treatment at that time due to septic shock, the appellant Janki Bai Patel could not be convicted for offence of murder under Section 302 of I.P.C.8
(v) He would also submit that the conviction of the appellant Janki Bai in Criminal Appeal No.747 of 2013 and other two appellants Subhash Chand Patel and Khagraj Patel in Criminal Appeal No.706 of 2013 is unmerited as all the three appellants have been acquitted from the offence under Section 304(B) of I.P.C. as such, their conviction of offence under Section 498-A of I.P.C. deserves to be set aside.
12. Replying the contention of learned counsel for the appellants, Mr. Sudeep Verma, learned Dy. Govt. Advocate would submit as under :
(i) That, the prosecution has been able to prove the offence under Section 302 and 498-A of I.P.C. against the appellant Janki Bai Patel beyond reasonable doubt and therefore she has rightly been convicted for the aforesaid offence.
(ii) That the Executive Magistrate Amit Shrivastava (PW-16) clearly stated before the Court that at the time of making statement, the injured Khemkumari was mentally fit and she was in position to make dying declaration and she has replied the questions put to her confidently and furthermore, the witness to Ex.P-14 namely Jitendra Kumar (PW-9) has also supported that the declarant was in fit state of mind at the time of making dying declaration. Dr. Rupendra Patel (PW-8) in his memo vide Ex.P-
12 has clearly recorded that the deceased at the relevant point of time was in fit state of mind and similarly Ex.P-30 (case history maintained by Fortis Jindal Hospital) and acknowledged 9 by Dr. Arvind Kumar Singhal (PW-17) have also clearly stated that during the course of treatment, she was in fit state of mind.
(iii) Similarly, he would also refer to Explanation 2 to Section 299 of I.P.C. and would submit that the argument raised by learned counsel for the appellants in view of her discharge from the hospital by the parents of the deceased, is also misplaced in light of Explanation 2 of Section 299 of I.P.C.
Explanation 2. - Where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skillful treatment the death might have been prevented.
(iv) He would submit that the conviction of the appellant Janki Bai and other appellants are well merited and both the appeals deserve to be dismissed.
13. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection.
14. The question for consideration is, whether the dying declaration of the deceased recorded vide Ex.P-14 by the Executive Magistrate/ Tahsildar namely Amit Kumar Shrivastava (PW-16) in presence of two independent witnesses Jitendra Kumar (PW-
9) and Ramnarayan Patel (not examined) during the course of treatment would be relevant and admissible under Section 32(1) of the Indian Evidence Act.
10
15. Section 32(1) of the Indian Evidence Act, 1872 makes it clear that when a statement, written or verbal, 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 statement is relevant. The Supreme Court in the matter of Sharad Birdichand Sarda v. State of Maharashtra 1 clearly held that Section 32 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. The decision of the Supreme Court in Sharad Birdichand Sarda (supra) has further been followed by the Supreme Court in the matter of Kans Raj v. State of Punjab2 reviewing the earlier authorities. In Sharad Birdichand Sarda (supra), following propositions have been laid :-
"(1) Section 32 is an exception of 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.
1 AIR 1984 SC 1622 2 AIR 2000 SC 2324 11 (2) The test of proximity cannot be too literally construed and practically reduced to a cit-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 secured either by prompting or tutoring.
12
(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."
16. At this stage, it would be appropriate to notice the dying declaration vide Ex.P-14. For ready reference, it states as under:
ej.kklUu c;ku & vkfgrk [ksedqekjh fnukad & 27-12-11 uke & Jhefr [ksedqekjh] ifr & [kxjkt iVsy] 25 o"kZ] tkfr & v?kfj;k] lk- xzke& ej?kV~Vh] Fkkuk & glkSn] ftyk & tkatxhj pkaik iz- [ksedqekjh] D;k vki c;ku nsaxh\ m- gkaA iz- vki] dSls ty xbZ\ m- vkt lqcg tc eSa pwYgs ij jksVh idkus ds fy, d.Ms ls vkx tyk jgh FkhA mlh le; esjh lkl tkudh ckbZ vkbZA mlus eq> ij feVVh rsy Mkydj eq>s tyk;kA eSa cpus ds fy, fpYykbZA esjs llqj fpYykus dh vkokt lqudj vk, vkSj eq> ij ikuh MkykA iz- vkidh lkl us vkidks D;ksa Tkyk;k\ m- esjh lkl] llqj rFkk ifr eq>s izk;% ngst ds fy, rax djrs FksA eq>ls fQzt] okf'kax e'khu dh ekax fd;k djrs FksA esjh lkl 13 esjs ifr dks esjs ikl ugha vkus nsrh Fkh rFkk eksgYys esa tkus ij rkuk ekjrh FkhA iz- vkidks fdlh ckgjh O;fDr ls Hkh dksbZ rdyhQ gS\ m- ughaA vkSj fdlh ls dksbZ d"V ugha gS iz- vkids Åij feVVh rsy Mkyus ds ckn vkidks vkx dSls yxhA\ m- esjs Åij feVVh rsy Mkyus ds ckn esjh lkl us ekfpl ls eq> ij vkx yxkbZA eSa viuh nhnh iq"ik] tks [kM+xkao esa jgrh gS] ds ikl tkuk pkg jgh FkhA esjh lkl us eq>s euk dj fn;k FkkA iz- vkSj dqN dguk pkgrh gSa\ m- ugha""
iapl 1- ftrsUnz iVsy vk0 Jh j{kiky]""""
daikm.Mj v'kdhZ nsch gkfLiVy] jk;x<+ 2- jkeukjk;.k iVsy vk0 Jh 'k=qgu flag daikm.Mj v'kdhZ nsch gkfLiVy esjs le{k iwjs gks'kks&gokl esa fcuk fdlh ncko ds iapkuksa dh mifLFkfr esa c;ku fn;k ftls ntZ fd;kA""
17. Admittedly, the deceased suffered burn injury on 27.12.2011 at 6:00 P.M. and she was hospitalized at 10 A.M. for treatment by the accused persons to Asharfi Devi Hospital at Raigarh and she was treated by Dr. Rupendra Patel (PW-8) and immediately thereafter as per the statement of Dr. Rupendra Patel (PW-8) she was examined vide Ex.P-12 in which he found that the deceased has suffered burn injury to the extent of 40% and she was conscious at that time and able to give her statement. At the same time, it revealed her condition to be serious, therefore, the dying declaration Ex.P-14 was recorded and that too has been recorded by Executive Magistrate-Amit Kumar Shrivastava 14 (PW-16) in presence of Jitendra Kumar (PW-9) and Ramnarayan Patel (not examined).
18. Amit Kumar Shrivastava (PW-16) has proved the dying declaration by recording his statement before the Court. In the statement before the Court, he has clearly proved Ex.P-14 by examining himself and in para 9, he has clearly stated that the deceased was fully conscious and able to understand anything though it has not been recorded in dying declaration (Ex.P-14). He also denied the fact that on account of pain killer injection she was not in a position to make dying declaration. He has clearly supported the dying declaration vide Ex.P-14 made by the deceased Khemkumari.
19. At this stage, the argument raised on behalf of the appellants that the deceased Khemkumari was not mentally fit or in a state of mind to make dying declaration, deserves to be noticed.
20. Admittedly, in the dying declaration (Ex.P-14), it has not been recorded that the deceased was mentally fit to make dying declaration but vide Ex.P-12 recorded by Dr. Rupendra Patel (PW-8), it has clearly been recorded that at the time of her examination on 27.12.2011, at 11:00 A.M., she was conscious and able to give statement though serious and thereafter at 3:00 P.M. her statement (dying declaration) has been recorded.
21. The argument raised on behalf of the appellant that since satisfaction about the fit mental condition has not been recorded, therefore, dying declaration should be discarded. 15
22. The Supreme Court in the matter of Laxman v. State of Maharashtra3 (Constitution Bench) has clearly held that a certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise and observed as under :
"3......Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise."
23. Following the principles of law laid down by their Lordships of the Supreme Court in Laxman (supra), recently in the matter of Jagbir Singh v. State of NCT4 it has been held by the Supreme Court that even absence of the certificate by a doctor is not fatal to act upon a dying declaration. However, the requirement remains that the person who records the dying declaration must ensure that the patient was in a fit condition, both mentally and physically, to give the declaration. It is held as under :
"38. The first question, one must bear in mind, is whether the deceased was in a physical and mental condition to make a dying declaration. It is not in dispute that in the dying declaration dated 27.01.2008, there is no certificate by the Doctor 3 (2002) 6 SCC 710 4 (2019) 8 SCC 779 16 certifying that the patient was conscious or that the patient was mentally or physically fit to give the declaration. The patient was, in fact, admittedly lying in the hospital. Even in the narrative of the dying declaration, there are no questions seen put by PW29 to ascertain her condition. Undoubtedly, it is true that the certificate by a Doctor about the patient being conscious and fit to give a dying declaration would go a long way in inspiring confidence of the court. However, the Constitution Bench in Laxman v. State of Maharashtra (2002) 6 SCC 710 has held as follows :
"3......Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise."
39. We can proceed on the basis that even absence of the certificate by a Doctor is not fatal to act upon a dying declaration. However, the requirement remains that the person who records the dying declaration must ensure that the patient was in a fit condition, both mentally and physically, to give the declaration."
24. Turning to the facts of this case in light of the principles of law laid down by their Lordships of the Supreme Court in Laxman (supra) followed with approval in case of Jagbir Singh (supra), it reveals that in the present case the Executive Magistrate i.e. Amit Kumar Shrivastava (PW-16) has clearly stated that while recording the statement the deceased was mentally conscious 17 and in a fit condition to hear and understand the questions put to her and further she specifically replied all the questions put to her. The said fact has further been affirmed by Jitendra Kumar (PW-9) who is panch witness of Ex.P-14 and furthermore it has also been proved by Dr. Rupendra Patel (PW-8) vide Ex.P-12, when she was admitted to Asharfi Devi Hospital at 11:00 A.M. on 27.12.2011 and Ex.P-30 proved by Dr. Arvind Kumar Singhal (PW-17) who treated her at Fortis Jindal Hospital. As such, the argument raised on behalf of the appellants that absence of certificate of the Doctor is fatal to act upon dying declaration deserves to be and is accordingly rejected.
25. The next submission raised on behalf of the appellants is that the dying declaration of the deceased Khemkumari was recorded by the Executive Magistrate Amit Kumar Shrivastava (PW-16) without there being any official communication, therefore, the dying declaration is inadmissible in evidence.
26. The S.H.O. (PW-15) has requested the S.D.M. Raigarh vide Ex.P-28 to get the statement of dying declaration recorded which Amit Shrivastava (PW-16) has acknowledged vide Ex.P-28 and thereafter Amit Shrivastava (PW-16) has recorded the statement of the deceased vide Ex.P-14. Thus, it is incorrect to say that the Executive Magistrate (PW-16) has recorded the statement of the deceased Khemkumari without there being any official communication in writing. Furthermore, by virtue of 18 Illustration (e) to Section 114 of Indian Evidence Act, the Court may presume that the official acts have been regularly performed and as such, the argument raised in this behalf also deserves to be rejected.
27. The next submission that has been made on behalf of the appellants is that the dying declaration has been recorded by the Executive Magistrate Amit Kumar Shrivastava (PW-16) on 27.12.2011 at 3:00 P.M. and thereafter the FIR has been registered on the same day at Zero number vide Ex.P-29, therefore, it is not recorded in the course of investigation and therefore it is inadmissible in evidence and the Court should not have placed reliance upon the dying declaration Ex.P-14.
28. The Privy Council in the matter of Pakalanarayana Swami v.
King Emperor5 has clearly held that the only requirement for the admissibility of dying declaration is that the statement must be made in relation to the cause of death, or exhibits circumstances leading to death of a person, who's death is under consideration in judicial proceedings though whatever nature of it may have. Furthermore, the principles of law laid down in Pakalanarayana Swami has been followed with approval by the Supreme Court recently in the matter of Surendran v. State of Kerala6 and has been reiterated the same in para 18 of the judgment, as such, the argument raised in this behalf is liable to be rejected.
5 AIR 1939 Privy Council 47 6 AIR 2022 SC 2322 19
29. The next submission that has been vehementally argued is that the deceased Khemkumari has committed suicide as she has past history of mental instability / mental weakness and therefore the said dying declaration is inadmissible in evidence. The Executive Magistrate (PW-16) who has been examined has clearly stated before the Court that while making statement contained in Ex.P-14, the deceased Khemkumari was fully conscious and in a fit state of mind to hear and understand the questions asked to her and she has specifically replied all the questions asked to her and the same has been affirmed by the panch witness Jitendra Kumar (PW-9). Furthermore, the deceased while making police statement under Section 161 Cr.P.C. before Raja Nand Yadav (PW-15) had clearly stated that she was burnt by her mother-in-law i.e. appellant in Criminal Appeal No.474/2013 and her husband namely Khagraj Patel and her father-in-law Subhash Patel & they used to harass her for demand of dowry. Since Khemkumari later on died on 30.01.2012, her statement under Section 161 Cr.P.C. is treated as statement under Section 32(1) of Evidence Act and is admissible as valid piece of evidence, therefore, the argument raised in this behalf is rejected.
30. The last submission that has been made on behalf of the appellants is that the incident is said to have been occurred on 27.12.2011 and the deceased was discharged against the medical opinion by the parents of the deceased on 30.01.2012 20 from Fortis Jindal Hospital and suddenly she died due to septic shock, therefore, the appellant Janki Bai Patel cannot be held liable for offence of murder. This argument raised on behalf of the appellant Janki Bai ignores Explanation 2 of Section 299 of I.P.C.
31. Section 299 of I.P.C. defines culpable homicide and Explanation 2 has a material which reads as under : -
"299. Culpable homicide - Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.
Explanation 2 - Where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skilful treatment the death might have been prevented."
32. In the matter of Sudershan Kumar v. State of Delhi 7 their Lordships of Supreme Court affirmed the conviction under Section 302 of I.P.C. by considering the fact that there were 35% burn injuries by pouring of acid which according to Doctors' evidence was due to toxaemia and septicaemia from absorption of toxins. Their Lordships also considered the relevant Explanation 2 to Section 299, which provides that death is caused by bodily injury, the person who causes such bodily 7 (1975) 3 SCC 831 21 injury shall be deemed to have caused the death, although by resorting to proper remedies and skilful treatment the death might have been prevented. The aforesaid judgment has been followed by the Supreme Court in case of Veerla Satyanarayana v. State of Andhra Pradesh 8.
33. The Modi,s Medical Jurisprudence and Toxicology dealing with the death by burns has held as already mentioned death may occur within 44-48 hours, but usually the first week is most fatal in suppurative cases death may occur after 5 to 6 weeks or even longer. {See :- (2002) 1 SCC 22 (Patel Hiralal Joitaram v. State of Gujrat)}. In view of this legal position, argument of learned counsel is hereby rejected.
34. At this stage, it would be appropriate to notice the judgments cited by the learned counsel for the appellants, in the judgments of Supreme Court of Samaj Parivartan Samudaya & Ors. v. State of Karnataka & Ors.9 and Lalita Kumari v. Government of Uttar Pradesh & Ors.10 which are totally irrelevant to the facts of the present case and not applicable in the case before us.
35. The Supreme Court in the matter of Uka Ram v. State of Rajasthan11 has laid down the safeguards to be taken by the Court before relying upon dying declaration and further laid down the principles when the dying declaration can be made 8 (2009) 16 SCC 316 9 (2012) 7 SCC 407 10 (2014) 2 SCC 1 11 (2001) 5 SCC 254 22 sole basis for conviction and in the decision cited by learned counsel for the appellants in the matter of Sampat Babso Kale & Anr. v. State of Maharashtra 12, the Supreme Court has laid down the principles regarding the evidence available of dying declaration recorded by the Doctor and Magistrate and further held, when the corroboration is necessary. However, the decision rendered by the Supreme Court in the matter of State of Haryana v. Ram Singh13 is clearly distinguishable to the facts of the present case and inapplicable to the facts of the case in hand.
36. In view of the aforesaid legal analysis, we are of the considered opinion that the prosecution has been able to prove the dying declaration Ex.P-14 and it is a valid piece of evidence and it is admissible in evidence and the trial Court has rightly convicted the appellant Janki Bai Patel for the offence under Section 302 of I.P.C. Therefore, the conviction and sentence of the appellant Janki Bai Patel is well merited and is hereby affirmed for offence under Section 302 of I.P.C. Similarly, the conviction of the appellants Janki Bai Patel, Subhash Chand Patel and Khagraj Patel for offence under Section 498-A of I.P.C. is hereby affirmed, but considering the facts and circumstances of the case and evidence available on record, the conviction of appellants Subhash Chand Patel & Khagraj Patel are also affirmed but while confirming their conviction of all three 12 (2019) 4 SCC 739 13 (2002) 2 SCC 426 23 appellants for offence under Section 498-A of I.P.C., their sentence awarded to them for the offence under Section 498-A of I.P.C. is reduced to the period already undergone by them.
37. The appellant Janki Bai Patel is reported to be on bail, her bail bonds are forfeited and she is directed to surrender forthwith to serve out the remaining jail sentence. Since the appellants Subhash Chand Patel & Khagraj Patel are also on bail, they need not surrender; however, their bail bonds shall remain in operation for a period of 6 months in view of the provisions contained in Section 437-A of Cr.P.C.
38. In view of the above, both the criminals appeals are partly allowed to the extent indicated herein-above.
Sd/- Sd/-
(Sanjay K. Agrawal) (Rakesh Mohan Pandey)
Judge Judge
Aks