Supreme Court - Daily Orders
Rajendra Barai vs The State Of Chhattisgarh on 16 August, 2023
Bench: Hrishikesh Roy, Pankaj Mithal
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
Criminal Appeal No(s).474/2023
RAJENDRA BARAI Appellant(s)
VERSUS
THE STATE OF CHHATTISGARH Respondent(s)
O R D E R
Heard Mr. Rishi Malhotra, learned counsel appearing for the appellant. Also heard Mr. Sourav Roy, learned counsel for the State of Chhattisgarh.
2. This appeal arises out of the judgment and final order dated 18.02.2016 in CRA No.854/2010 whereby the Division Bench of the Chhattisgarh High Court has confirmed the order dated 13.10.2010 in the Sessions Trial No.05 of 2010, rendered by the learned Sessions Judge, Korba, Chhattisgarh whereby the appellant was convicted for the offence under Section 302 of IPC and sentenced to suffer life imprisonment and also to pay fine of Rs.3,000/ with default imprisonment.
3. Signature Not Verified The incident in question occurred on 19.10.2009 and the Digitally signed by NEETA SAPRA case of the prosecution is that on the said date, the appellant Date: 2023.08.17 14:57:47 IST Reason: had a quarrel with his wife Papti @ Parvati Barai and in fit of 1 rage he poured kerosene on her and set her ablaze. The appellant and the deceased at the time of the incident were married for about 25 years.
4. Smt. Papti in her burnt condition was rushed to the hospital, where on her statement the zero FIR was recorded by the Head Constable R. Kujur. The victim was then examined by Dr. M. P. Rathore (PW3) who treated her and also recorded her dying declaration (Ex.P6A). Five days after the incident, the victim died on 24.10.2009 while under treatment.
5. The conviction of the appellant is based primarily on the dying declaration of the deceased i.e., Parvati Barai and therefore, Mr. Rishi Malhotra, learned counsel for the appellant has taken pains to take us through the relevant statement of the deceased as deposed by the PW2, PW3, PW5 and PW7 respectively.
6. Chelva @ Shiva is brother of the deceased and he deposed as PW2 in the Trial. When the PW2 learnt of the incident, he rushed to his sister’s residence where he found the appellant to be present. He arranged to take Smt. Papti to the hospital in an autorickshaw. In his examinationinchief, PW2 stated that his sister told him that she was set on fire by the appellant but in the same breath he also said that she set herself on fire as the appellant demanded money from her. In his cross examination, PW2 stated that the mental status of 2 his sister Papti is not very sound and on two earlier occasions she attempted suicide. When the brother specifically asked his sister, Smt. Papti told the brother that she set herself on fire in a fit of rage. Adverting to the deceased’s state of mind, the brother as a witness also said in his cross examination that it is possible that his sister had set herself on fire.
7. PW7 i.e., Pradeep Kumar Sagar was a neighbour of the deceased and in his deposition, he stated that the mental condition of Papti was not very good and on earlier two occasions she had poured kerosene over herself after quarrelling with her husband. When PW7 met Papti in the hospital, she had told him that she mentioned the appellant’s name in a fit of rage.
8. On the other hand, the FIR was recorded as per the statement of the deceased in her injured state. The same was recorded by the Head Constable R. Kujur (PW5) at the hospital. According to the version in the FIR, the appellant wanted to remarry and asked the deceased to leave him and this led to confrontation between the husband and wife. The appellant then poured kerosene and set her on fire.
9. The PW3 was the doctor who treated the victim in her burnt condition. He also recorded the dying declaration (Exbt.P6A) of the victim, on being instructed by the Magistrate. According to the doctor when he questioned the patient, Smt. Papti responded that it 3 is her husband who poured kerosene on her and set her on fire under intoxication of liquor. PW3 stated that the dying declaration was recorded at 04:00 o’clock in the evening on 19.10.2009 and at that time, the patient was conscious and was capable of giving her statement.
10. The above would show that the deceased in her statement given to her brother (PW2) and to her neighbour (PW7) had stated that she had set herself on fire. Both the witnesses have mentioned about the weak state of mind of the deceased and the two earlier attempts by her to commit suicide by using kerosene. But on the other hand, the zero FIR recorded by the Head Constable (PW5) and the dying declaration recorded by the Doctor (PW3) at the hospital would suggest that the deceased had implicated her husband as the person who poured kerosene on her and set her on fire.
11. If all the aforesaid versions of the dying declarations of the deceased are considered, it is easily discerned that they are not consistent. The version of PW3 and the FIR implicate the appellant but the version of PW2 and PW7 absolves the appellant and puts the blame on the deceased herself. Interestingly, although the PW2 and PW7 did not support the prosecution version of the case, they were not declared to be hostile witnesses. Conviction, however, was based on the dying declaration (Exbt.P6A) recorded by PW3 at the hospital.
12. To emphasize on the evidentiary value of dying declaration, 4 the learned Counsel has cited Nallapati Sivaiah vs. Sub Divisional Officer, Guntur, Andhra Pradesh1 where writing the opinion of the Bench, Justice B. Sudershan Reddy referred to the legal maxim “nemo moriturus praesumitur mentire” meaning, that a man will not meet his Maker with a lie in his mouth. There can be no quarrel with the legal proposition that dying declaration is a substantive piece of evidence and can form the sole basis for conviction. But in order to sustain conviction only on the basis of the dying declaration, there must be a consistent dying declaration. Thus, in a case where two divergent versions of the dying declaration are available for a deceased who was burnt by fire and there is also evidence of the deceased having attempted suicide by burning on two earlier occasions and her weak state of mind, we have to carefully weigh the evidence. The appellant and deceased were married for about 25 years and there is nothing on record to show that the appellant had treated his wife with cruelty. Together with their modest earning, they were bringing up their daughter. In his statement under Section 313 Cr.P.C the appellant stated that his wife has set herself on fire due to her unsound mental condition. Her weak men tal condition is corroborated by her brother (PW2) and the neighbour (PW7). Therefore, the death being selfinflicted 1 (2007) 15 SCC 465 5 can’t entirely be ruled out. The conduct of the appellant who made no attempt to flee is also to be considered. The version relied by the Courts below is exactly opposite of what was stated before the deceased’s own brother (PW2) and her neighbour (PW7) who is obviously a disinterested witness.
13. Looking at the discrepancies in the crucial evidence i.e., Exbt. P6A the dying declaration being inconsistent, does not in our opinion, meet the conviction threshold.
14. In view of the foregoing, the appellant is entitled to the benefit of doubt. Accordingly, the appeal stands allowed. The appellant is acquitted and ordered to be set free.
15. The Registry will communicate a copy of this order to the Central Jail, Bilaspur so that the appellant can be released, if he is not wanted in any other case.
………………………………………………………J. (HRISHIKESH ROY) ………………………………………………………J. (PANKAJ MITHAL) NEW DELHI August 16, 2023 6 ITEM NO.102 COURT NO.6 SECTION II-C S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Criminal Appeal No(s). 474/2023 RAJENDRA BARAI Appellant(s) VERSUS THE STATE OF CHHATTISGARH Respondent(s) (IA No. 92133/2017 - EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT) Date : 16-08-2023 These matters were called on for hearing today. CORAM :
HON'BLE MR. JUSTICE HRISHIKESH ROY HON'BLE MR. JUSTICE PANKAJ MITHAL For Appellant(s) Mr. Rishi Malhotra, AOR Mr. Jaydip Pati, Adv.
For Respondent(s) Mr. Sourav Roy, Dy.AG
Mr. Vasudev Singh, Adv.
Mr. Mahesh Kumar, Adv.
Ms. Devika Khanna, Adv.
Mrs. V. D. Khanna, Adv.
Mr. Sunit Kumar Toppo, Adv.
Mr. VMZ Chambers, AOR
UPON hearing the counsel the Court made the following O R D E R The appellant is acquitted and ordered to be set free. The criminal appeal is allowed in terms of the signed order. The Registry will communicate a copy of this order to the Central Jail, Bilaspur so that the appellant can be released, if he is not wanted in any other case.
Pending application stands disposed of accordingly.
(RASHMI DHYANI PANT) (KAMLESH RAWAT)
COURT MASTER (SH) ASSISTANT REGISTRAR
(signed order is placed on the file)
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