Himachal Pradesh High Court
State Of H.P vs Charan Dass on 19 June, 2024
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
Neutral Citation No. ( 2024:HHC:3644 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 145 of 2011 Reserved on: 20.05.2024 .
Date of Decision: 19.06.2024
State of H.P. ...Appellant.
Versus
Charan Dass ...Respondent.
Coram
Hon'ble Mr Justice Vivek Singh Thakur, Judge. Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 Yes.
For the Appellant : Ms. Seema Sharma, Deputy Advocate General.
For the Respondent : Mr Tara Singh Chauhan, Advocate, for respondent No.1 Appeal against respondent No.2- Sukh Ram stands abated vide order dated 06.05.2024.
Rakesh Kainthla, Judge The present appeal is directed against the judgment dated 18.11.2010, passed by learned Additional Sessions Judge, Ghumarwin, District Bilaspur, H.P. (learned Trial Court) vide which the respondents (accused before learned Trial Court) were acquitted of the charges framed against them. (Parties shall 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 19/06/2024 20:33:24 :::CIS 2hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).
2. Briefly stated, the facts giving rise to the present .
appeal are that on 22.4.2009, the victim (name being withheld to protect her identity) had started to meet her father, who was confined in Nahan Jail . She boarded the bus. She slept on the bus and got down at Bilaspur at 5.00 PM. She found that somebody had picked-up her pocket and taken away nine currency notes of ₹100/-. She was left with only ₹30/-, which was not sufficient for returning or moving further. She met one person at the bus stand and narrated the incident to him. He gave ₹50/- to her. The victim was waiting for the bus when she met one Sadhu, who revealed his name as Charan Dass. Charan Dass asked the victim where she was going during the night and that she should accompany him. The victim refused but accused Charan Dass told her that one old lady resided in the vicinity and the victim should visit her home. The victim accompanied the accused Charan Dass. He took her to Village Delag to the house of another accused Sukh Ram. Accused Charan Dass and Sukh Ram consumed liquor during the night and confined the victim to a room. The condition of the victim deteriorated and she started ::: Downloaded on - 19/06/2024 20:33:24 :::CIS 3 vomiting. Accused Charan Dass and Sukh Ram entered her room.
Sukh Ram bolted the victim and Charan Dass in a room and went away. Accused Charan Dass tried to rape the victim but the victim .
resisted. Charan Dass administered some black pill to the victim.
The victim slept after taking it. She regained consciousness in the morning. Sukh Ram opened the door. The victim and Charan Dass came out of the room. The victim said that her condition was not good. Charan Dass was taking her towards Ghumarwin for her treatment. Some people stopped them at Delag and called the police. The statement of the victim (Ex.PW4/A) was reduced into writing and sent to the Police Station, where FIR (Ex.PW16/A) was registered. Inspector Jasbir Singh (PW17) filed an application (Ex.PW3/A) for conducting the medical examination of the victim. Dr. D. Bhangal (PW3) conducted her medical examination and found that she had sexual intercourse but the time of occurrence was to be ascertained after the Forensic Expert's Report. He issued the MLC (Ex.PW3/B).
Inspector Jasbir Singh (PW17) recovered one saffron-coloured bag (Ex. P5) from Charan Dass containing four black tablets (Ex.
P6), white and black sawdust-like material, one small black bag containing two packets of Laxman Rekha (Ex. P7 and Ex. P8) and ::: Downloaded on - 19/06/2024 20:33:24 :::CIS 4 two white cowries. He seized the recovered articles vide memo (Ex.PW5/A). He arrested the accused. He filed an application (Ex.PW1/A) for conducting the medical examination of the .
accused persons. Dr Rishi Tandon (PW1) conducted the medical examination of Charan Dass and found that he had suffered simple injuries that could have been caused by the blunt weapon within 12-16 hours. There was nothing to suggest that he was incapable of performing sexual intercourse. He issued MLC (Ex.PW1/B). He also examined Sukh Ram and found that he had sustained simple injuries that could have been caused by the blunt weapon within the probable duration of 12-16 hours. He issued the MLC (Ex.PW1/C), preserved the samples and handed them over to the police officials accompanying the accused. The victim died in the meantime. ASI Jagjit Singh (PW16) visited the hospital and took the photographs (Ex.PW16/C to Ex.PW16/E). He conducted the inquest over the dead body of the deceased and prepared the reports (Ex.PW2/B to Ex.PW2/D). He filed an application (Ex.PW2/A) for conducting the postmortem examination of the dead body. Dr. N.K. Sankhyan (PW2) conducted the postmortem examination and opined that the victim had died due to asphyxia but reserved his final opinion, ::: Downloaded on - 19/06/2024 20:33:24 :::CIS 5 which was to be given after the receipt of the report of the Chemical Examiner. He preserved the viscera and articles of the deceased and handed them over to the police official .
accompanying the dead body after sealing them in separate parcels. Inspector Jasbir Singh (PW17) went to the house of the accused Sukh Ram on 24.4.2009 and took the photographs (Ex.P10 to Ex.P20), whose negatives are Ex.P21. The wife of accused Sukh Ram identified the room in which the accused Charan Dass had stayed with the deceased during the night.
Inspector Jasbir Singh prepared the site plan (Ex.PW17/C). He found three white spots lying on the bed sheet (Ex. P1). He encircled and marked them. He found one red bindi (Ex. P2), one Manka (Ex.P3) and a bunch of hair (Ex.P4) on the bed. He put them in a parcel and sealed the parcel with seal 'K'. The bed sheet was put in a separate parcel which was sealed with seal 'K'. These were seized vide memo (Ex.PW4/B). Specimen seal (Ex.PW17/D) was taken on a separate piece of cloth. Inspector Jasbir Singh filed an application (Ex.PW9/A) for obtaining the birth certificate of the victim. Yogesh Chand (PW9) issued the birth certificate (Ex.PW9/B). Inspector Jasbir Singh also filed an application (Ex.PW15/A) before the Head Master of the school where the ::: Downloaded on - 19/06/2024 20:33:24 :::CIS 6 victim was studying. Vipin Kumar (PW15) issued the certificate (Ex.PW15/B). Inspector Jasbir Singh filed an application (Ex.PW3/C) before the Medical Officer, Regional Hospital, .
Bilaspur to obtain the treatment record. The treatment record (Ex.PW3/D) was issued. The case property was sent to FSL and results (Ex.PW2/F and Ex.PW2/G) were issued in which it was shown that phosphine gas was detected in the viscera, but could not be detected in Laxman Rekha. Cypermethrin insecticide was found in Laxman Rekha. Human blood was found on the shirt, salwar, vest and brassiere of the victim. No semen was detected on them. Blood was detected in traces and dupatta of the victim but it was insufficient for further examination. Human semen was found on the bed sheet. The statements of the remaining witnesses were recorded as per their version and after the completion of the investigation, the challan was prepared and presented before the learned Chief Judicial Magistrate, Bilaspur, who committed it for trial to learned Sessions Judge, Bilaspur, who assigned it to learned Additional Sessions Judge, Ghumarwin, District Bilaspur, H.P. (learned Trial Court) for disposal as per law.
::: Downloaded on - 19/06/2024 20:33:24 :::CIS 73. The learned Trial Court charged the accused Charan Dass with the commission of offences punishable under Sections 366, 366-A, 376(2)(g), 305 and 120-B of IPC and accused Sukh .
Ram with the commission of offences punishable under Sections 342, 368, 376(2)(g), 305 and 120-B of IPC. The accused pleaded not guilty and claimed to be tried.
4. The prosecution examined 17 witnesses to prove its case. Dr. Rishi Tandon (PW1) conducted the medical examination of the accused. Dr. N.K. Sankhyan (PW2) conducted the post-mortem examination of the deceased. Dr. D. Bhangal (PW3) conducted the medical examination of the victim. Prem Lal (PW4) is the witness to the recovery. Naresh Kumar (PW5) was running a dhaba and had found the accused Charan Dass and the victim and called the police. ASI Shiv Kumar (PW6) is the witness to the recovery. Reshmu (PW7) found the accused and the victim going towards the house of accused Sukh Ram. PW8 is the uncle of the victim. Yogesh Chand (PW9) issued the birth certificate of the victim. LC Maya Devi (PW10) carried the articles from the hospital to the Police Station and from the Police Station to the Forensic Science Laboratory (FSL), Junga. Inspector Megh Nath (PW12) prepared the challan. Salochna Sharma (PW13) produced ::: Downloaded on - 19/06/2024 20:33:24 :::CIS 8 the record of the victim. HC Suresh Kumar (PW14) was working as MHC, with whom the case property was deposited. Vipin Kumar (PW15) issued a birth certificate from the school. ASI .
Jagjit Singh (PW16) and Inspector Jasbir Singh (PW17) conducted the investigation.
5. The accused in their statements recorded under Section 313 of Cr.P.C. denied the prosecution case, however, they admitted that they were medically examined by the police.
Accused Charan Dass stated that witnesses deposed against him in connivance with Dhabewala and the police. He had not committed any offence. He was implicated in a false case by the prosecution witnesses in connivance with the police. The deceased never accompanied him to the house of Sukh Ram and he had also never visited the house of Sukh Ram. The deceased died when she was with the police and the public. Dhabewala and others got him beaten up by the public on the pretext that he had teased the girl in the dhaba. He had no connection with the commission of the crime.
6. Accused Sukh Ram stated that the witnesses deposed against him due to enmity and at the instance of the police. He had not committed any offence and he was involved in a false ::: Downloaded on - 19/06/2024 20:33:24 :::CIS 9 case by the prosecution witnesses and the police because the deceased had died when she was with the police and the police wanted to save their skin. He had not closed doors nor entered .
the room where Charan Dass and the deceased were staying. He was Chela by profession and many people visited Mahadev where he performed Pooja. Charan Dass visited the temple. He stated that the victim was under the influence of an evil spirit. He told Charan Dass that he (Sukh Ram) treated the patients on Tuesday and Saturday. It was nighttime and Charan Dass requested that he and the victim be permitted to stay for the night. He allowed them to stay in the room where other persons used to stay during the night. He (Sukh Ram) was suffering from paralysis. He left for Kandraur in the morning. He came to know during noon time that accused Charan Dass and the deceased were apprehended at Delag-ka-Galla. When he reached Delag, he was given beatings by Prem Lal and Naresh. He was involved in a false case. No defence was sought to be adduced by the accused.
7. The learned Trial Court held that a statement made by the victim will not fall within the definition of a dying declaration. Even otherwise, the statement was self-
contradictory. She had exonerated the accused Sukh Ram by ::: Downloaded on - 19/06/2024 20:33:24 :::CIS 10 saying that he had bolted the door from outside during the night and opened the door in the morning but stated that he had also attempted to molest her. The charge of conspiracy was not .
proved since there was no proof of the agreement between the parties for doing unlawful acts. The wife of Sukh Ram was the best witness to prove the prosecution case; however, the prosecution did not examine her. The medical evidence does not show any recent sexual activity. Aluminium phosphide was not found with the accused. Accordingly, the accused were acquitted of the offences with which they were charged.
8. Being aggrieved from the judgment passed by the learned Trial Court, the State has filed the present appeal, asserting that the learned Trial Court failed to appreciate the evidence. The reasoning of the learned Trial Court is unreasonable and unsustainable. Testimonies of the prosecution witnesses were discarded without any cogent reason. It was duly proved that Charan Dass had taken the victim to the house of the accused Sukh Ram. Learned Trial Court held that the statement of the victim was not admissible as a dying declaration and also relied upon the same to reject the prosecution case. The deceased was forced to consume some substance during the night. The ::: Downloaded on - 19/06/2024 20:33:24 :::CIS 11 burden shifted upon the accused to explain how the deceased had died. The accused failed to discharge the burden. Learned Trial Court erred in acquitting the accused. Therefore, it was prayed .
that the present appeal be allowed and the judgment passed by the learned Trial Court be set aside.
9. We have heard Ms Seema Sharma, learned Deputy Advocate General for the appellant/State and Mr Tara Singh Chauhan, learned counsel for the respondent/accused No.1.
Respondent/accused No.2-Sukh Ram died during the pendency of the proceedings and the proceedings abated qua him.
10. Ms Seema Sharma, learned Deputy Advocate General, for the respondent-State submitted that the prosecution had succeeded in proving its case beyond reasonable doubt for the commission of offences with which the accused were charged.
Learned Trial Court erred in acquitting the accused. The statement of the victim was admissible as a dying declaration and the learned Trial Court erred in rejecting the same. The accused and the victim were last seen together and the burden shifted upon the accused to explain the circumstances under which the victim had died; the accused failed to do so. Hence, the ::: Downloaded on - 19/06/2024 20:33:24 :::CIS 12 accused are liable to be punished and the learned Trial Court erred in acquitting them.
11. Mr Tara Singh Chauhan, learned counsel for the .
respondent/accused-Charan Dass submitted that the statement of the victim is not admissible as it does not relate to the cause of her death. The accused were not charged with the murder of the victim and the theory of last seen and shifting the burden will not appeal be dismissed.
r to apply to the present case. Therefore, he prayed that the present
12. We have given considerable thought to the submissions and have gone through the records carefully.
13. The present appeal has been filed against a judgment of acquittal. The Hon'ble Supreme Court laid down the parameters for deciding an appeal against acquittal in Jafarudheen v. State of Kerala, (2022) 8 SCC 440, as under: -
"Scope of Appeal filed against the Acquittal:
25. While dealing with an appeal against acquittal by invoking Section 378 of the Cr.PC, the Appellate Court has to consider whether the Trial Court's view can be termed as a possible one, particularly when evidence on record has been analyzed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the Appellate Court has to be relatively slow in reversing the order of the Trial Court rendering acquittal. Therefore, the presumption in favour of the ::: Downloaded on - 19/06/2024 20:33:24 :::CIS 13 accused does not get weakened but only strengthened.
Such a double presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters."
.
14. This position was reiterated in Siju Kurian versus State of Karnataka 2023 online SCC 429, wherein it was held:-
"15. One of the main contentions raised by the learned counsel appearing for the appellant is to the effect that the High Court ought not to have interdicted with the judgment of the acquittal passed by the Trial Court and only in the event of the judgment of the Trial court was riddled with perversity and the view taken by the Trial Court was not a possible view, same could have been reversed by relying upon the judgment of this Court in case of Murugesan V. State through the Inspector of police(2012) 10 SCC 383 whereunder it came to be held as follows:
"33. The expressions "erroneous", "wrong" and "possible" are defined in the Oxford English Dictionary in the following terms:
"erroneous.-- wrong; incorrect.
wrong.--(1) not correct or true, mistaken.
(2) unjust, dishonest, or immoral.
possible.--(1) capable of existing, happening, or being achieved.
(2) that may exist or happen, but that is not certain or probable."
34. It will be necessary for us to emphasize that a possible view denotes an opinion, which can exist or be formed irrespective of the correctness or otherwise of such an opinion. A view taken by a court lower in the hierarchical structure may be termed as erroneous or wrong by a superior court upon a mere disagreement. But such a conclusion of the higher court would not take the view rendered ::: Downloaded on - 19/06/2024 20:33:24 :::CIS 14 by the subordinate court outside the arena of a possible view. The correctness or otherwise of any conclusion reached by a court has to be tested on the basis of what the superior judicial authority perceives to be the correct conclusion. A possible .
view, on the other hand, denotes a conclusion, which can reasonably be arrived at regardless of the fact where it is agreed upon or not by the higher court. The fundamental distinction between the two situations has to be kept in mind. So long as the view taken by the trial court can be reasonably formed, regardless of whether the High Court agrees with the same or not, the view taken by the trial court cannot be interdicted and that of the High Court supplanted over and above the view of the trial court."
16. It need not be restated that it would be open for the High Court to re-apprise the evidence and conclusions drawn by the Trial Court and in the case of the judgment of the trial court being perverse that is contrary to the evidence on record, then in such circumstances the High Court would be justified in interfering with the findings of the Trial Court and/or reversing the finding of the Trial Court. In Gamini Bala Koteswara Rao v. State of Andhra Pradesh (2009) 10 SCC 636: AIR 2010 SC 589 it has been held by this Court as under:
"14. We have considered the arguments advanced and heard the matter at great length. It is true, as contended by Mr Rao, that interference in an appeal against an acquittal recorded by the trial court should be rare and in exceptional circumstances. It is, however, well settled by now that it is open to the High Court to reappraise the evidence and conclusions drawn by the trial court but only in a case when the judgment of the trial court is stated to be perverse. The word "perverse" in terms as understood in law has been defined to mean "against the weight of evidence". We have to see accordingly as to whether the judgment of the trial ::: Downloaded on - 19/06/2024 20:33:24 :::CIS 15 court which has been found perverse by the High Court was in fact so.
17. The Appellate Court may reverse the order of acquittal in the exercise of its powers and there is no indication in .
the Code of any limitation or restriction having been placed on the High Court in the exercise of its power as an Appellate court. No distinction can be drawn as regards the power of the High Court in dealing with an appeal, between an appeal from an order of acquittal and an appeal from a conviction. The Code of Criminal Procedure does not place any fetter on the exercise of the power to review at large the evidence upon which the order of acquittal was founded and to conclude that upon that evidence the order of acquittal should be reversed.
18. In the case of Sheo Swarup v. King Emperor AIR 1934 PC 227, it has been held by the Privy Council as under:
But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as:
1) The views/opinion of the trial judge as to the credibility of the witnesses;
2) The presumption of innocence in favour of the accused;
3) The right of the accused to the benefit of any doubt; and
4) The slowness of an appellate court in disturbing a finding of fact arrived at by a judge who had the advantage of seeing the witnesses.
19. This Court has time and again reiterated the powers of the Appellate Court while dealing with the appeal against an order of acquittal and laid down the general principles in the matter of Chandrappa v. State of Karnataka (2007) 4 SCC 415 to the following effect:
"42. From the above decisions, in our considered view, the following general principles regarding the ::: Downloaded on - 19/06/2024 20:33:24 :::CIS 16 powers of the Appellate Court while dealing with an appeal against an order of acquittal emerge:
(1) An Appellate court has full power to review, reappreciate and reconsider the .
evidence upon which the order of acquittal is founded.
(2) The Criminal Procedure Code, 1973 puts no limitation, restriction or condition on the exercise of such power and an Appellate court on the evidence before it may reach its own conclusion, both on questions of fact and law. (3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", r "glaring mistakes", etc. are not intended to curtail extensive powers of an Appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an Appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
(4) An Appellate court, however, must bear in mind that in case of acquittal, there is a double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the ::: Downloaded on - 19/06/2024 20:33:24 :::CIS 17 Appellate court should not disturb the finding of acquittal recorded by the trial court."
15. The present appeal has to be adjudicated in the light of the judgments of the Hon'ble Supreme Court.
.
16. The victim made a statement under Section 154 of Cr.PC to the police. The statement free translated reads as under:-
"Stated that I am a resident of the above-mentioned address. My mother has died and my father is serving a sentence in Nahan Jail. Her elder sister and younger brother are residing with me. I was working in a factory manufacturing gunny bags. I served for 1½ months and left the work in the first week of April. I obtained a salary and started residing with my uncle. My salary was taken by my uncle. On 22.4.2009, I started from my home to meet my father at Nahan. I boarded the bus and purchased a ticket to Bilaspur. The bus started at 2.00 PM and reached Bilaspur at 5.00 PM. I was sleeping on the bus and somebody had removed nine currency notes each worth ₹100/- from my purse. ₹30/- was left in my purse. I came to know after reaching Bilaspur that I had reached the wrong place. I did not have money to return. One aged person met me at Bilaspur Bus Stand. I narrated the incident to him and he paid me ₹50/-. I remained at Bus Stand, Bilaspur to take a bus. One sadhu met me who was wearing saffron clothes. He revealed his name as Charan Dass. Charan Dass asked me where I would go during the night. He asked me to accompany him. I refused. He revealed that one old lady resided in the vicinity and I should go there. I accompanied Sadhu, who took me to village Delog on a bus. He took me to the house of a person in Village Delog. The person is named Sukh Ram. Charan Dass and Sukh Ram consumed liquor during the night and bolted me into a room. My condition was deteriorating and I was vomiting. Charan Dass and Sukh Ram came to my ::: Downloaded on - 19/06/2024 20:33:24 :::CIS 18 room. The wife of Sukh Ram had gone somewhere. Sukh Ram bolted the door of the room in which I and Charan Dass were present. Charan Dass tried to rape me and removed my clothes; however, I tried to save myself. One pill was taken from the bag of Charan Dass which was .
consumed and I fell asleep. I awoke in the morning. I did not know what happened to me during the night. Sukh Ram opened the door in the morning. I and Charan Dass came out of the room. I told them that my condition was not good. Sadhu Charan Dass was taking me to Ghumarwin for my treatment. Some people stopped us at Delag and called the police. The police visited village Delag. Charan Dass and Sukh Ram entered into a conspiracy and attempted to rape me. I should be medically examined and legal action should be taken against them."
17. This statement is silent regarding the cause of death.
At best, the statement can be used to prove the circumstances under which the death had taken place. In Pakala Narayana Swami v. King-Emperor (1938-39) 66 IA 66 = 1939 SCC OnLine PC 1 the deceased made a statement that he was going to Behrampur as the wife of the accused had written a letter to him asking him to receive payment. His dead body was found thereafter. It was held by the Judicial Committee of the Privy Council that this statement would be admissible under Section 32 of the Indian Evidence Act as the transaction related to the circumstances of his death. It was observed:
"A variety of questions has been mooted in the Indian Courts as to the effect of this section. It has been suggested that the statement must be made after the ::: Downloaded on - 19/06/2024 20:33:24 :::CIS 19 transaction has taken place, that the person making it must be at any rate near death, and that the "circumstances" can only include the acts done When and where the death was caused. Their Lordships are of the opinion that the natural meaning of the words used does .
not convey any of these limitations. The statement may be made before the cause of death has arisen, or before the deceased has any reason to anticipate being killed. The circumstances must be circumstances of the transaction;
general expressions indicating fear or suspicion whether of a particular individual or otherwise and not directly related to the occasion of the death will not be admissible. But statements made by the deceased that he was proceeding to the spot where he was in fact killed, or as to his reasons for so proceeding, or that he was going to meet a particular person, or that he had been invited by such person to meet him would each of them be circumstances of the transaction and would be so whether the person was unknown, or was not the person accused. Such a statement might indeed be exculpatory of the person accused. "Circumstances of the transaction" is a phrase no doubt that conveys some limitations. It is not as broad as the analogous use in "circumstantial evidence" which includes evidence of all relevant facts. It is on the other hand narrower than "res gestæ." Circumstances must have some proximate relation to the actual occurrence: though for instance in a case of prolonged poisoning, they may be related to dates at a considerable distance from the date of the actual fatal dose.
It will be observed that "the circumstances" are of the transaction which resulted in the death of the declarant. It is not necessary that there should be a known transaction other than that the death of the declarant has ultimately been caused, for the condition of the admissibility, of the evidence is that "the cause of [the declarant's] death comes into question." In the present case, the cause of the deceased's death comes into question. The transaction is one in which the deceased was murdered on 21st March or 22nd March: and his body was found in a trunk proved to be bought on behalf of the accused. The statement made ::: Downloaded on - 19/06/2024 20:33:24 :::CIS 20 by the deceased on 20th or 21st March that he was setting out to the place where the accused lived and to meet a person, the wife of the accused, who lived in the accused's house, appears clearly to be a statement as to some of the circumstances of the transaction which resulted in his .
death. The statement was rightly admitted."
18. This position was reiterated in Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 wherein it was observed:
"18. Before closing this chapter, we might state that the Indian law on the question of the nature and scope of dying declaration has made a distinct departure from the English Law where only the statements which directly relate to the cause of death are admissible. The second part of clause (1) of Section 32 viz. "the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question" is not to be found in the English Law. This distinction has been clearly pointed out in the case of Rajindra Kumar v. State [AIR 1960 Punj 310: 1960 Cri LJ 851] where the following observations were made:
"clause (1) of Section 32 of the Indian Evidence Act provides that statements, written or verbal, of relevant facts made by a person who is dead, are themselves relevant facts 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... It is well settled by now that there is a difference between the Indian Rule and the English Rule with regard to the necessity of the declaration having been made under the expectation of death.
In English Law, the declaration should have been made under the sense of impending death whereas under Indian Law it is not necessary for the ::: Downloaded on - 19/06/2024 20:33:24 :::CIS 21 admissibility of a dying declaration that the deceased at the time of making it should have been under the expectation of death."
19. And in the case of State v. Kanchan Singh [AIR 1954 All .
153: 1953 All LJ 615: 1954 Cri LJ 264] it was observed thus:
"The law in India does not make the admissibility of a dying declaration dependent upon the person's having a consciousness of the approach of death.
Even if the person did not apprehend that he would die, a statement made by him about the circumstances of his death would be admissible under Section 32, Evidence Act."
20. In these circumstances, therefore, it is futile to refer to English cases on the subject.
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 ::: Downloaded on - 19/06/2024 20:33:24 :::CIS 22 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.
(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 that are directly connected with or related to her death and which reveal a tell-tale story, the said statement would fall within the four corners of Section 32 and, therefore, be admissible. The distance of time alone in such cases would not make the statement irrelevant.
19. In Sudhakar Sudhakar v. State of Maharashtra, (2000) 6 SCC 671 the victim was raped. She made a statement to the police but committed suicide after some time. It was laid down by the ::: Downloaded on - 19/06/2024 20:33:24 :::CIS 23 Hon'ble Supreme Court that the statement made by the victim did not relate to the cause of death and could at best be admitted about the circumstances related to her death. It was observed: -
.
"5. Section 32 of the Evidence Act is an exception to the general rule of exclusion of the hearsay evidence. Statement of a witness, written or verbal, of relevant facts made by a person who is dead or cannot be found or who has become incapable of giving evidence or whose attendance cannot be procured without an amount of delay or expense, are deemed relevant facts under the circumstances specified in sub-sections (1) to (8). Sub- section (1) of Section 32 with which we are concerned, provides that when the statement is made by a person as to the cause of his death or as to any circumstances of the transaction which resulted in his death, being relevant fact, is admissible in evidence. Such statements are commonly known as dying declarations. Such statements are admitted in evidence on the principle of necessity. In case of homicidal deaths, the statement made by the deceased is admissible only to the extent of proving the cause and circumstances of his death. To attract the provisions of Section 32 for the purposes of admissibility of the statement of a deceased, it has to be proved that:
(a) The statement sought to be admitted was made by a person who is dead or who cannot be found or whose attendance cannot be procured without an amount of delay and expense or is incapable of giving evidence.
(b) Such statement should have been made under any of the circumstances specified in sub-sections (1) to (8) of Section 32 of the Evidence Act.
As distinguished from the English law, Section 32 does not require that such a statement should have been made in expectation of death. Statement of the victim who is dead is admissible insofar as it refers to the cause of his death or as to any circumstances of the transaction which ::: Downloaded on - 19/06/2024 20:33:24 :::CIS 24 resulted in his death. The words "as to any of the circumstances of the transaction which resulted in his death" appearing in Section 32 must have some proximate relation to the actual occurrence. In other words, the statement of the deceased relating to the cause of death or .
the circumstances of the transaction which resulted in his death must be sufficiently or closely connected with the actual transaction. Due weight is required to be given to a dying declaration keeping in view the legal maxim nemo moriturus praesumitur mentiri i.e. a man will not meet his maker with a lie in his mouth. To make such a statement as substantive evidence, the person or the agency relying upon it is under a legal obligation to prove the making of the statement as a fact. If it is in writing, the scribe must be produced in the court and if it is verbal, it should be proved by examining the person who heard the deceased making the statement. However, in cases where the original recorded dying declaration is proved to have been lost and not available, the prosecution is entitled to give secondary evidence thereof.
20. It was further held that when the victim had not disclosed her intention to commit suicide and the cause of death was not established, the statement could not be used as a dying declaration. It was observed:
"11. There is no legal evidence on record that the prosecutrix at or about the time of making the statement had disclosed her mind for committing suicide allegedly on account of the humiliation to which she was subjected on account of the rape committed on her person. The prosecution evidence does not even disclose the cause of death of the deceased. The circumstances stated in Exhibit P-59 do not suggest that a person making such a statement would, under normal circumstances, commit suicide after more than five-and-a-half months. The High Court was, therefore, not justified in relying upon Exhibit P-59 as a dying declaration holding that the said ::: Downloaded on - 19/06/2024 20:33:24 :::CIS 25 statement was in a series of circumstances of the transaction which resulted in the death of the deceased on 21-12-1994..."
21. In the present case, the death had taken place due to .
the consumption of poison. Dr. N.K. Sankhyan (PW2), who conducted the postmortem examination of the dead body, stated in his final opinion that the deceased had died due to asphyxia after consuming aluminium phosphide or zinc phosphide poison.
22. The effect of aluminium phosphide poisoning was explained by the Hon'ble Supreme Court in Jaipal v. State of Haryana, (2003) 1 SCC 169: 2003 SCC (Cri) 250: 2002 SCC OnLine SC 932 as under:
"14. Dr Sharma admitted during his cross-examination that aluminium phosphide has a smell. If celphos tablet is kept open in a room it will fill the room with smell. It is this characteristic of celphos poison emitting a pungent smell which renders it improbable to be administered deceitfully and that is why this poison is not generally used in cases of homicidal death. Celphos once administered or consumed spreads rapidly in the body and kidneys, liver, spleen, heart and lungs are affected by the poison. The presence of such poison having been consumed would be revealed by pathological findings.
15. Dr Sharma's opinion, as expressed during his deposition, has authoritative support. Modi on Medical Jurisprudence and Toxicology (22nd Edn.) states (at pp. 197-
98) that aluminium phosphide (celphos) is used as a fumigant to control insects and rodents in foodgrains and fields. In reported cases of poisoning, symptoms which have been found are burning pain in the mouth, throat and stomach, vomiting mixed with blood, dysphonia, rapid ::: Downloaded on - 19/06/2024 20:33:24 :::CIS 26 pulse, subnormal temperature, loss of coordination, convulsions of a clonic nature and death. In the solid form, it acts as a corrosive in the mouth and throat as it precipitates proteins. In post-mortem appearance, the tongue, mouth and oesophagus are oedematous and .
corroded. The mucous membrane of the stomach is corrugated, loosened or hardened and is stained red or velvety. The intestines are inflamed.
16. According to Modi, symptoms and signs of poisoning by aluminium phosphide are similar to poisoning by zinc phosphide (p. 197, ibid.). The chief symptoms after the administration of zinc phosphide are a vacant look, frequent vomiting with retching, tremors and drowsiness followed by respiratory distress at death. Zinc phosphide acts as a slow poison and is decomposed by hydrochloric acid in the stomach with the liberation of phosphine which acts as a respiratory poison. Being a very fine powder zinc phosphide adheres firmly to the crypts in the mucous membrane of the stomach, and a very small quantity only in the stomach even after vomiting is sufficient to cause death by slow absorption.
17. Phosphine released from zinc phosphide (rat poison) and from aluminium phosphide, is mainly used as a fumigant to control insects and rodents in foodgrains and fields. Liberated from the metal phosphides by the action of water or acids, gaseous phosphine exerts a more potent pesticidal action, for it penetrates to all areas otherwise inaccessible for pesticide application. Pathological findings from phosphine inhalation are pulmonary hyperaemia and oedema. It causes both fatty degeneration and necrosis of the liver (p. 174, ibid.).
18. Our attention was invited, as was done in the High Court and the trial court, to a paper entitled "Toxicology -- Acute Aluminium Phosphide Poisoning in Northern India" written by Dr Mitra Basu and Prof. S.B. Siwach, Head, Department of Medicine, Postgraduate Institute of Medical Sciences, Rohtak and published in Current Medical Journal, Vol. I, No. 5, July 1995. The authenticity of this article has not been doubted by the ::: Downloaded on - 19/06/2024 20:33:24 :::CIS 27 High Court nor questioned either in the High Court or in this Court. The learned authors noticed that aluminium phosphide having emerged as a major health problem in northern India when these cases first started coming in 1984 and hardly any literature being available earlier on .
this malady. In the Postgraduate Institute of Medical Sciences, Rohtak about 2000 cases were reported which were all suicidal.
19. We may briefly sum up the opinion of the learned authors from their published papers. Phosphine gas (an active ingredient of ALP) causes sudden cardiovascular collapse; most patients die of shock, cardiac arrhythmia, acidosis and adult respiratory distress syndrome (ARDS). Aluminium phosphide is available in the form of chalky- white tablets. When these tablets are taken out of the sealed container, they come in contact with atmospheric moisture and the chemical reaction takes place liberating Phosphine gas (PH3) which is the active ingredient of ALP. This gas is highly toxic and effectively kills all insects and thus preserves the stored grains. When these tablets are swallowed, the chemical reaction is accelerated by the presence of hydrochloric acid in the stomach and within minutes phosphine gas dissipates and spreads into the whole body. The gas is highly toxic and damages almost every organ but maximal damage is caused to the heart and lungs. Sudden cardiovascular collapse is the hallmark of acute poisoning. Patients come with fast, thready or impalpable arterial pulses, unrecordable or low blood pressure and icy-cold skin. Somehow these patients remain conscious till the end and continue to pass urine despite unrecordable blood pressure. Vomiting is a prominent feature associated with epigastric burning sensation. The patients will be smelling foul (garlic-like) from their breath and vomitus. Many of them will die within a few hours. Those who survive for some time will show elevated jugular venous pressure and may develop tender hepatomegaly and still later adult respiratory distress syndrome (ARDS), renal shutdown and in very few cases, toxic hepatic jaundice. The active ingredient of ALP is phosphine gas which causes extensive tissue damage. A ::: Downloaded on - 19/06/2024 20:33:24 :::CIS 28 spot clinical diagnosis is possible in a majority of cases of ALP poisoning. However, ALP on account of its very pungent smell (which can drive out all inmates from the house if left open) cannot be taken accidentally."
.
23. This position was reiterated in Darshan Singh v.
State of Punjab, (2024) 3 SCC 164: 2024 SCC OnLine SC 17 wherein it was observed:
"35. The appellant had set up a defence that the deceased had committed suicide. The trial court disbelieved it on the premise that the appellant and Rani Kaur were present in the house, and if the deceased were to have committed suicide, it was but natural for the appellant to take her to the hospital and inform persons/authorities concerned.
However, we have come to the finding above that the circumstance of the appellant and Rani Kaur being present in the house has not been convincingly proved beyond doubt. Therefore, the reasoning given by the trial court loses its legs to stand on. In any case, we believe that the appellant has raised a doubt in our minds as regards his defence that the deceased had committed suicide. There appears to be no dispute as to the fact that the death was caused by poisoning. The doctor's testimony on the basis of the chemical examiner's report that the cause of death was linked to aluminium phosphide poisoning remains unchallenged. In fact, in his Section 313CrPC statement, even the appellant states that the deceased consumed poison (aluminium phosphide) and committed suicide. In Jaipal case [Jaipal v. State of Haryana, (2003) 1 SCC 169:
2003 SCC (Cri) 250], this Court has considered the characteristic features of death caused by poisoning through aluminium phosphide. A review of scholarly literature and research papers suggests that the nature of this substance (aluminium phosphide) is such that it is not conducive for deceitful administration since it carries a pungent garlic-like odour, which cannot go unmissed. It was suspected that the substance was mixed in tea and served to the deceased since 200 ml of brownish liquid was ::: Downloaded on - 19/06/2024 20:33:24 :::CIS 29 found in her stomach as per the PMR. We find it doubtful that the deceased would have been made to consume tea deceitfully given the nature of the substance. Forceful administration of this substance also seems doubtful since there are no injury marks suggestive of a scuffle. In light .
of the evidence on record, even assuming for a moment that the appellant and Rani Kaur were present, it still cannot be said with certainty that it was a case of homicide and not suicide..."
24. Thus, as per the judgment of the Hon'ble Supreme Court, aluminium phosphide poison cannot be taken accidentally because of its pungent odour. The clinical examination can reveal its consumption by foul (garlic-like) smell and the death takes place within a few hours of its consumption.
25. In the present case, all these are missing. Dr. D. Bhangal (PW3) conducted the medical examination of the victim on 23.4.2009 at 6.15 PM. According to him, the victim was conscious and oriented but restless. She had not given relevant history. Her pulse was feeble. She was given medical treatment in the emergency. He stated in his cross-examination that the victim did not give her account of the act without any questions being put to her. She did not give any relevant history on his asking. The victim was examined at 6.15 PM and she was in the emergency up to 7.30 PM. He could not find the kind of poison taken by the victim. He also did not find any sign or symptom of the poison and did not treat her for poisoning. Initially, when she ::: Downloaded on - 19/06/2024 20:33:24 :::CIS 30 was brought to the hospital, she was not struggling for life but later on, she started struggling for life.
26. The statement of this witness shows that when the .
victim was brought to the hospital, her condition was stable but deteriorated thereafter and she started struggling for life. The victim did not give any history of the consumption of the poison and the Medical Officer could not find any symptom of the poisoning. Therefore, he did not treat the victim for poisoning.
Thus, it was not clear till 7.30 PM that the victim had consumed any poison or that her condition was deteriorating due to consumption of the poison. The statement made by the victim nowhere states that the accused had forced her to consume the poison. She stated that one black pill was taken from the bag of Charan Dass, which was consumed. She fell asleep thereafter. She has not specifically stated whether the victim had herself taken the medicine or it was administered to her. There is no proof that the pill consumed by the victim was aluminium phosphide. She would not have taken the pill of aluminium phosphide accidentally because of its pungent odor; hence, the statement made by the victim cannot even constitute the circumstances relating to her death and the same cannot be admitted as a dying ::: Downloaded on - 19/06/2024 20:33:24 :::CIS 31 declaration. Thus, the learned Trial Court had rightly excluded her statement.
27. The police recovered some pills from the bag of .
accused Charan Dass. These were sent for chemical examination and as per the report (Ex.PW2/F), no trace of phosphine gas could be found in the articles sent to the FSL. Cypermethrin insecticide was found in the Laxman Rekha, which was not the cause of death. Therefore, the evidence collected by the prosecution does not show that the accused possessed the poison at the relevant time.
28. The Medical Officer did not find any sign of recent sexual intercourse. Dr. D. Bhangal (PW3) specifically stated that she had sexual intercourse but the time of occurrence was to be ascertained after the chemical examination. Dr. N.K. Sankhyan (PW2) stated that the organs of generation were normal, hymen was torn but not recently. He stated in his cross-examination that he did not find any mark of violence on the dead body.
Hence, the medical evidence does not show that the victim was subjected to recent sexual intercourse.
29. Heavy reliance was placed upon the human semen detected on the bed sheet. However, the same was not subjected ::: Downloaded on - 19/06/2024 20:33:24 :::CIS 32 to further examination to find out whether it belonged to accused Charan Dass or not. Further, no semen was detected on the clothes of the victim or the accused. Therefore, nothing much .
can be made out of the human semen detected on the bed sheet.
30. Thus, the learned Trial Court had taken a reasonable view by holding that no case of commission of an offence punishable under Section 376(2)(g) of IPC was made out.
31. There is no evidence to show when the poison was taken by the deceased. Her statement does not show that the accused had created any circumstance forcing her to consume poison. There is no evidence that the deceased had consumed poison while she was with the accused. Hence, the offence punishable under Section 305 of IPC is also not made out against the accused.
32. There is no evidence of any conspiracy. The victim had herself stated in her statement made to the police that accused Sukh Ram bolted the house and went away, which means that he did not participate in any of the activities. Further, the learned Trial Court had rightly pointed out that there was no evidence of a meeting of mind, hence, the learned Trial Court had ::: Downloaded on - 19/06/2024 20:33:24 :::CIS 33 rightly acquitted the accused of the commission of an offence punishable under Section 120-B of IPC.
33. Yogesh Chand (PW9) issued the birth certificate .
(Ex.PW9/B). It mentions the date of birth of the victim as 15.2.1995. Similarly, Vipin Kumar (PW15) issued the School Leaving Certificate (Ex.PW15/B), in which the date of birth of the victim was mentioned as 15.2.1995. Yogesh Chand (PW9) stated in his cross-examination that the entry of birth of the victim was made in the register on 10.5.2000 under the orders of SDM and he had not brought the order of the SDM. He could not say why the entries of the birth of the victim were delayed. The mere fact that the entry was not made immediately but was made subsequently as per the order of the SDM will not take away their effect. The entries were made ante litem mortem and are to be treated as correct. Similarly, Vipin Kumar (PW15) stated that the entry was made based on the Panchayat certificate, which was not brought by him, however, this will not take away the effect of the entry which was made before the dispute had arisen. Therefore, it is duly proved that the victim was aged about 14 years on 22.4.2009, the date of the incident.
::: Downloaded on - 19/06/2024 20:33:24 :::CIS 3434. The victim was residing with her uncle and had not abandoned her home. She was going to meet her father and would be deemed to be in the custody of her uncle with whom she .
was residing. Smt. Reshmu (PW7) stated that she saw the accused Charan Dass passing the courtyard of her house along with the girl. Charan Dass told on inquiry that he was taking the girl to the house of Sukh Ram for her treatment. He also said that the girl was his grand daughter. She saw them coming from the house of Sukh Ram in the morning. She identified the girl in the photograph. She also identified accused Charan Dass, present in the Court. She stated in her cross-examination that there were 10-15 houses in her village. She was confronted with her previous statement, wherein it was not mentioned that Charan Dass had stated the victim to be his granddaughter. She admitted that the people visiting the house of Sukh Ram pass through her house.
She also admitted that people visiting from distant places stay in the house of Sukh Ram. She admitted that the place where the people stay is situated beside the temple.
35. There is nothing in her cross-examination to show that she was making a false statement. She is an independent person and has nothing to gain by making a false statement.
::: Downloaded on - 19/06/2024 20:33:24 :::CIS 35Hence, her statement shows that the accused and the victim had gone together towards the house of Sukh Ram.
36. Even accused Sukh Ram did not deny that accused .
Charan Dass and the victim had visited his home and stayed overnight. He stated that accused Charan Dass introduced the victim as his relative and stated that he wanted to get her treated.
He (Sukh Ram) told him (Charan Dass) that he treated the patients only on Tuesday and Saturday, on which Charan Dass asked him to provide shelter during the night. This corroborates the testimony of this witness that she had seen the accused Charan Dass and the victim going together to the house of Sukh Ram.
37. The victim was going to Nahan from where she was taken to the house of Sukh Ram. There is no evidence that the consent of her guardian was taken. Hence, the offence of kidnapping was duly established. Since it has not been established that the victim was subjected to sexual intercourse, hence, the offence punishable under Section 366 of IPC is not made out. However, taking the minor as of her guardianship were constitute an offence punishable under Section 363 of IPC.
::: Downloaded on - 19/06/2024 20:33:24 :::CIS 3638. Thus, the prosecution case was duly proved for the commission of an offence under Section 363 of IPC. The accused was not charged with the commission of an offence punishable .
under Section 363 of the IPC but with Section 366 of the IPC, which is an aggravated form of Section 363 of the IPC. Hence, the accused can be convicted of the commission of offence punishable under Section 363 of IPC despite the absence of charge as no prejudice has been caused to him.
39. In view of the above, the present appeal is partly allowed and accused Charan Dass is convicted of the commission of an offence punishable under Section 363 of IPC. He remained in custody from 23.4.2009 till 18.11.2010, the date when the judgment was pronounced by the learned Trial Court. Hence, he is sentenced to the period already undergone by him and to pay a fine of ₹ 5,000/- and in default of payment of fine to undergo simple imprisonment for one month for the commission of an offence punishable under Section 363 of IPC.
(Vivek Singh Thakur) Judge (Rakesh Kainthla) Judge 19th June, 2024 (Chander) ::: Downloaded on - 19/06/2024 20:33:24 :::CIS