Page No.1 of 19 IN CRA-1009-2019 2025:CGHC:5103-DB NAFR HIGH COURT OF CHHATTISGARH, BILASPUR Criminal Appeal No. 1009 of 20 19 [Arising out of judgment dated 06.04.2019, passed in Sessions Case No.08 of 2018 (State of Chhattisgarh v. Satya Prakash Tandan & 03 others), by the Additional Sessions Judge, District Mungeli (C.G.)] 1. Satya Prakash Tandan, Son of Shri Chandra Prakash Tandan, aged about 27 years, 2. Chandra Prakash Tandan, Son of Shri Sant Tandan, aged about 50 years, 3. Bhanu Tandan, Son of Shri Chandra Prakash Tandan, aged aboout 28 years, 4. Raj Kumari Tandan, Wife of Shri Chandra Prakash Tandan, aged about 48 years, [All Resident of Village Jhitkaniya, Police Station Fastarpur, Civil and Revenue District Mungeli (Chhattisgarh)] ---- Appellants (In Jail) Versus State of Chhattisgarh, through the Station House Officer, Police Station Fastarpur, Civil and Revenue District Mungeli (Chhattisgarh) ---- Respondent ----------------------------------------------------------------------------------- For Appellants : Mr. Paras Mani Shrivas, Advocate For Respondent : Mr. Pankaj Singh, Panel Lawyer ----------------------------------------------------------------------------------- Division Bench Hon'ble Shri Justice Sanjay K. Agrawal and Hon'ble Shri Justice Deepak Kumar Tiwari Judgment on Board (28.01.2025) Sanjay K. Agrawal, J (1) In this criminal appeal filed under Section 374(2) of Cr.P.C., SAIFAN KHAN Digitally signed by SAIFAN KHAN Date: 2025.01.30 10:19:16 +0530 Page No.2 of 19 IN CRA-1009-2019 the accused-appellants herein are calling in question the legality, validity and correctness of the impugned judgment of conviction and order of sentence dated 06.04.2019, passed in Sessions Case No.08 of 2018 (State of Chhattisgarh v. Satya Prakash Tandan & 03 others), by the Additional Sessions Judge, District Mungeli (C.G.), whereby they all have been convicted for offence under Section 302 of IPC and sentenced to undergo imprisonment for life with fine of Rs.500/- each and, in default of payment of fine amount, sentenced to undergo additional imprisonment for 03 months each. (2) The case of the prosecution, in a nutshell, is that on 22.12.2017 and prior to it also, at Village Jhitkaniya, which comes within the ambit of Police Station Fastarpur, District Mungeli (CG), the accused-appellants herein being the husband, father-in-law, brother-in-law and mother-in-law of Sita Tandon (hereinafter referred to as the “deceased”) respectively, in connivance with each other, firstly subjected the deceased to cruelty mentally and physically for or in connection with demand of dowry and, in furtherance thereof, on 22.12.2017, at about 08:15 PM, the accused-appellants poured kerosene oil on the body of the deceased and set her ablaze, due to which she suffered deep burn injuries to the extent of 87% and died later on during the course of her treatment at CIMS, Bilaspur on 28.12.2017 and, thereby, said to have committed offences under Sections 498(A), 326 & 302/34 of IPC. Page No.3 of 19 IN CRA-1009-2019 (3) It is further case of the prosecution that after the incident when the deceased was escorted to Chhattisgarh Institute of Medical Science, Bilaspur for treatment, on 23.12.2017, her dying declaration (Ex.P/22) was recorded by Executive Magistrate, namely, Rajkumar Sahu (PW-11), wherein she implicated the name of the present appellants to be the authors of the crime by stating that the accused/appellants herein used to trouble her as also her mother for or in connection with demand of dowry and, owing to which, they poured kerosene oil over her body and set her ablaze, due to which she suffered burn injuries. Meanwhile, on the basis of report so lodged by the mother of the deceased, namely, Munni Jangde (PW-2), FIR (Ex.P/03) was registered against the appellants and wheels of investigation started running, in which, site map was prepared vide Ex.P/01. (4) During the course of treatment, the deceased succumbed to the injuries and died on 28.12.2017, pursuant to which, information with regard to sudden and unnatural death was sent by the hospital to the police vide Ex.P/09. Thereafter, merg intimation (Ex.P/10 & Ex.P/21) were recorded. Summons under Section 175 of CrPC were sent vide Ex.P/23 & 04 and inquest proceedings were also conducted vide Ex.P/05. The dead-body of the deceased was sent for postmortem examination and, in the postmortem report (Ex.P/06), conducted by Dr. R.K. Markam (PW-06), it was opined that deceased suffered burn injuries to the extent of 87% and her Page No.4 of 19 IN CRA-1009-2019 cause of death of deceased is extensive burn injuries and its complication. Thereafter, the accused-appellants were arrested vide Ex.P/13 to Ex.P/16 respectively. Certain articles i.e. plastic bottle containing smell of kerosene, matchstick box and burnt pieces of deceased’s clothes were seized. Though the said seized articles were sent for chemical analysis vide Ex.P/19, but no FSL report has been brought on record for the reasons best known to the prosecution. Thereafter, statements of witnesses were recorded and, after due investigation, the police filed charge-sheet against the appellants in the competent court of criminal jurisdiction and, ultimately, the case was committed to the Court of Sessions for hearing and trial in accordance with law, in which the appellants/accused abjured their guilt and entered into defence by stating that they are innocent and have been falsely implicated. (5) The prosecution in order to prove its case examined as many as 11 witnesses and exhibited 24 documents, whereas the appellants-accused in support of their defence, examined 04 witness and exhibited 01 document. (6) The learned trial Court after appreciating the oral and documentary evidence available on record, proceeded to convict all the appellants herein for offence under Section 302 of IPC and sentenced them as mentioned in the opening paragraph of this judgment, against which this appeal has been preferred by the Page No.5 of 19 IN CRA-1009-2019 appellant-accused questioning the impugned judgment of conviction and order of sentence. (7) Mr. Paras Mani Shriwas, learned counsel appearing for the appellant submits that the learned trial Court is absolutely unjustified in convicting the appellants for offence under Section 302 of IPC, as the prosecution has failed to prove the same beyond reasonable doubt. He further submits that there is no evidence available on record against the appellants to connect them with the crime in question except the dying declaration (Ex.P/22). Though the dying declaration (Ex.P/22) has been made basis to convict the appellants herein, however, a bare perusal of the said dying declaration would show that neither the treating doctor nor any other medical officer has clearly certified the deceased to be in fit mental and physical condition to give said dying declaration. Even the Executive Magistrate, namely, Rajkumar Sahu (PW-11), who has recorded the said dying declaration (Ex.P/22) has not recorded his satisfaction in it nor he has stated before the Court while recording his statement that the deceased was in fit state of mind at the time of recording of the dying declaration. Learned counsel vehemently argued that relying upon the same dying declaration (Ex.P/22), all the appellants have been acquitted for offence under Section 498-A & 326 of IPC, but they have convicted for offence under Section 302 of IPC, which is illegal and bad in law. As per dying declaration (Ex.P/22), the appellants subjected the deceased with cruelty, which Page No.6 of 19 IN CRA-1009-2019 is punishable under Section 498-A of IPC, however, all the appellants have been convicted for the said offence and, in absence of any further challenge in an appeal, the same has attained its finality. (8) Learned counsel for the appellants also argued that the dying declaration (Ex.P/22) has partly been disbelieved by the learned trial Court by acquitting the appellants for offence under Section 498-A of IPC, therefore, in absence of any further corroboration and in light of the decision of the Supreme Court in the matter of Godhu and another vs. State of Rajasthan 1 , the same cannot be relied upon to hold the appellants guilty of the offence under Section 302 of IPC. As such, for the afore-stated reasons, the dying declaration (Ex.P/22) is not trustworthy, as it does not inspire confidence and cannot be relied upon to convict the appellant for the offence in question. Hence, the impugned judgment of conviction and order of sentence passed by the learned trial Court is liable to be set aside and the appellants deserves to be acquitted from the said charge on the basis of benefit of doubt. (9) Per-contra, learned State counsel supported the impugned judgment of conviction and order of sentence and submits that the prosecution has proved the offence beyond reasonable doubt by leading evidence of clinching nature. He further submits that in view of dying declaration (Ex.P/22), wherein the deceased has 1 (1975) 3 SCC 241 Page No.7 of 19 IN CRA-1009-2019 clearly stated the name of the appellants herein to be authors of the crime coupled with other evidence available on record, the conviction and sentence passed by the learned trial Court against the appellant is well merited and, therefore, present appeal deserves to be dismissed. (10) We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. (11) Now the question for consideration before us would be whether the appellants are the authors of the crime in question or not ? (12) In the instant case, the case of the prosecution is solely based on dying declaration (Ex.P/22) recorded by Executive Magistrate, namely, Rajkumar Sahu (PW-11), therefore, it would be appropriate to notice the principles governing the dying declaration and examination of the doctor while recording the dying declaration. (13) At this stage, it is relevant to notice Section 32(1) of the Indian Evidence Act, 1872, which reads thus: “32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant.—Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases:— Page No.8 of 19 IN CRA-1009-2019 (1) when it relates to cause of death.—When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question. xxx xxx xxx” (14) The general ground of admissibility of the evidence mentioned in Section 32(1) is that in the matter in question, no better evidence is to be had. The provisions in Section 32(1) constitute further exceptions to the rule which exclude hearsay. As a general rule, oral evidence must be direct (Section 60). The eight clauses of Section 32 may be regarded as exceptions to it, which are mainly based on two conditions: a necessity for the evidence and a circumstantial guarantee of trustworthiness. Hearsay is excluded because it is considered not sufficiently trustworthy. It is rejected because it lacks the sanction of the tests applied to admissible evidence, namely, the oath and cross-examination. But where there are special circumstances which gives a guarantee of trustworthiness to the testimony, it is admitted even though it comes from a second-hand source. The Supreme Court emphasized on the principle enumerated in the famous legal maxim of the Law of Evidence, i.e., nemo moriturus praesumitur mentire which means a man will not meet his Page No.9 of 19 IN CRA-1009-2019 Maker with a lie in his mouth. Our Indian Law also recognizes this fact that “a dying man seldom lies” or in other words “truth sits upon the lips of a dying man”. The relevance of this very fact, is an exception to the rule of hearsay evidence. (15) Section 32(1) of the Evidence Act is famously referred to as the “dying declaration” section, although the said phrase itself does not find mention under the Evidence Act. Their Lordships of the Supreme Court have considered the scope and ambit of Section 32 of the Evidence Act, particularly, Section 32(1) on various occasions including in the matter of Sharad Birdhichand Sarda v. State of Maharashtra2 in which their Lordships have summarised the principles enumerated in Section 32(1) of the Evidence Act, including relating to “circumstances of the transaction”: “21. Thus, from a review of the authorities mentioned above and the clear language of Section 32(1) of the Evidence Act, the following propositions emerge:- (1) Section 32 is an exception to the rule of hearsay and makes admissible the statement of a person who dies, whether the death is a homicide or a suicide, provided the statement relates to the cause of death, or exhibits circumstances leading to the death. In this respect, as indicated above, the Indian Evidence Act, in view of the peculiar conditions of our society and the diverse nature and character of our people, has thought it necessary to widen the sphere of Section 32 to avoid injustice. 2 (1984) 4 SCC 116 Page No.10 of 19 IN CRA-1009-2019 (2) The test of proximity cannot be too literally construed and practically reduced to a cut-and-dried formula of universal application so as to be confined in a straitjacket. Distance of time would depend or vary with the circumstances of each case. For instance, where death is a logical culmination of a continuous drama long in process and is, as it were, a finale of the story, the statement regarding each step directly connected with the end of the drama would be admissible because the entire statement would have to be read as an organic whole and not torn from the context. Sometimes statements relevant to or furnishing an immediate motive may also be admissible as being a part of the transaction of death. It is manifest that all these statements come to light only after the death of the deceased who speaks from death. For instance, where the death takes place within a very short time of the marriage or the distance of time is not spread over more than 3-4 months the statement may be admissible under Section 32. (3) The second part of clause (1) of Section 32 is yet another exception to the rule that in criminal law the evidence of a person who was not being subjected to or given an opportunity of being cross-examined by the accused, would be valueless because the place of cross-examination is taken by the solemnity and sanctity of oath for the simple reason that a person on the verge of death is not likely to make a false statement unless there is strong evidence to show that the statement was secured either by prompting or tutoring. (4) It may be important to note that Section 32 does not speak of homicide alone but includes suicide also, hence all the circumstances which may be relevant to prove a case of homicide would be equally relevant to prove a case of suicide. (5) Where the main evidence consists of statements and letters written by the deceased which Page No.11 of 19 IN CRA-1009-2019 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) 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 Sharad Birdhichand Sarda (supra) 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 Birdhichand Sarda (supra) has further been followed by the Supreme Court in the matter of Kans Raj v. State of Punjab3 reviewing the earlier authorities. (17) Thereafter, in the matter of Devinder alias Kala Ram and others v. State of Haryana4, wherein the deceased, who sustained burn injuries while cooking meals on stove, had made a statement to the doctor, their Lordships of the Supreme Court held that 3 AIR 2000 SC 2324 4 (2012) 10 SCC 763 Page No.12 of 19 IN CRA-1009-2019 statement of the deceased recorded by the doctor is relevant under Section 32 of the Evidence Act and observed as under: - “14. In the facts of the present case, we find that PW 7, the Medical Officer of the Civil Hospital, examined the case of the deceased on 6-8-1992 at 6.30 a.m. and he has clearly stated in his evidence that on examination she was conscious and that there were superficial to deep burns all over the body except some areas on feet, face and perineum and there was smell of kerosene on her body. He also stated in his evidence that the deceased was brought to the hospital by her husband Kala Ram (Appellant 1). He has proved the bed-head ticket pertaining to the deceased in the hospital (Ext. DD) as well as his endorsement at Point ‘A’ on Ext. DD, from which it is clear that he was told by the patient herself that she sustained burns while cooking meals on a stove. This statement of the deceased recorded by PW 7 is relevant under Section 32 of the Evidence Act, 1872 which 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.” (18) In the matter of Purshottam Chopra and another v. State (Government of NCT of Delhi)5, principles relating to recording of dying declaration and its admissibility and reliability were summed up in paragraph 21 as under: - “21. For what has been noticed hereinabove, some of the principles relating to recording of dying declaration and its admissibility and reliability could be usefully summed up as under:- 5 (2020) 11 SCC 489 Page No.13 of 19 IN CRA-1009-2019 21.1.A dying declaration could be the sole basis of conviction even without corroboration, if it inspires confidence of the court. 21.2.The court should be satisfied that the declarant was in a fit state of mind at the time of making the statement; and that it was a voluntary statement, which was not the result of tutoring, prompting or imagination. 21.3.Where a dying declaration is suspicious or is suffering from any infirmity such as want of fit state of mind of the declarant or of like nature, it should not be acted upon without corroborative evidence. 21.4.When the eyewitnesses affirm that the deceased was not in a fit and conscious state to make the statement, the medical opinion cannot prevail. 21.5.The law does not provide as to who could record dying declaration nor there is any prescribed format or procedure for the same but the person recording dying declaration must be satisfied that the maker is in a fit state of mind and is capable of making the statement. 21.6.Although presence of a Magistrate is not absolutely necessary for recording of a dying declaration but to ensure authenticity and credibility, it is expected that a Magistrate be requested to record such dying declaration and/or attestation be obtained from other persons present at the time of recording the dying declaration. 21.7.As regards a burns case, the percentage and degree of burns would not, by itself, be decisive of the credibility of dying declaration; and the decisive factor would be the quality of evidence about the fit and conscious state of the declarant to make the statement. Page No.14 of 19 IN CRA-1009-2019 21.8.If after careful scrutiny, the court finds the statement placed as dying declaration to be voluntary and also finds it coherent and consistent, there is no legal impediment in recording conviction on its basis even without corroboration.” (19) Further, in the matter of Irfan @ Naka v. State of Uttar Pradesh 6 the Supreme Court has held that the dying declaration is a substantive piece of evidence to be relied on provided it is proved that the same was voluntary and truthful and the victim was in a fit state of mind and observed in Para-63 as under: “63. It is the duty of the prosecution to establish the charge against the accused beyond the reasonable doubt. The benefit of doubt must always go in favour of the accused. It is true that dying declaration is a substantive piece of evidence to be relied on provided it is proved that the same was voluntary and truthful and the victim was in a fit state of mind. It is just not enough for the court to say that the dying declaration is reliable as the accused is named in the dying declaration as the assailant.” (20) Bearing in mind the aforesaid principles of law laid down by their Lordships of the Supreme Court in the above-mentioned judgments, it is quite vivid that in the instant case though the prosecution’s case is projected totally on dying declaration (Ex.P/22), which is proved by Executive Magistrate, namely, Rajkumar Sahu (PW-11), however from the said dying declaration (Ex.P/19) it is not clear whether the deceased was conscious 6 2023 SCC Online SC 1060 Page No.15 of 19 IN CRA-1009-2019 oriented to give statement. Though the deceased was admitted and undergoing treatment at Burn Unit of CIMS, Bilaspur, but neither the treating doctor nor any other medical officer has certified the deceased to be in fit mental and physical condition to give said dying declaration. There is no evidence available on record to substantiate whether at the time of recording the dying declaration any doctor/medical officer has examined the deceased and found her to be in fit state of mind to give statement. Even otherwise, the Executive Magistrate, namely, Rajkumar Sahu (PW-11), who has recorded the said dying declaration (Ex.P/22) has not recorded his satisfaction in it nor he has stated before the Court while recording his statement that the deceased was in fit state of mind at the time of recording of the dying declaration. Therefore, it could not be ascertain whether at the time of recording of the dying declaration (Ex.P/22), the deceased was conscious oriented or in fit physical and mental state of mind for giving statement, more particularly, when as per PM report (Ex.P/06) of the deceased, she suffered burn injuries to the extent of 87%. As such, it is not established beyond reasonable doubt that the deceased was in fit state of mind at the time of recording of dying declaration (Ex.P/22), which was necessary in light of the decision of the Supreme Court in the matter of Irfan @ Naka (supra). Therefore, argument putforth in this regard is liable to be and is hereby accepted. Page No.16 of 19 IN CRA-1009-2019 (21) Now the next limb of argument that has been putforth on behalf of the appellants is that relying upon the same dying declaration (Ex.P/22), admittedly, on the one hand, the appellants have been convicted for offence under Section 302 of IPC, but on the other hand, they have been acquitted for offences under Section 498A & 326 of IPC. Whereas, upon bare perusal of the dying declaration (Ex.P/22) it appears that it is case of the prosecution that the four appellants herein have subjected the deceased with cruelty mentally and physically for or in connection with demand of dowry and, owing to which, on the date and time of the offence, they poured kerosene oil over her body and set her ablaze, due to which she died. (22) In this regard, in the matter of Godhu (supra), their Lordships of the Supreme Court have held that the rejection of a part of the dying declaration would put the Court on the guard and induce it to apply a rule of caution and observed in Para-16 & 19 as under: “16. We are also unable to subscribe to the view that if a part of the dying declaration has not been proved to be correct, it must necessarily result in the rejection of the whole of the dying declaration. The rejection of a part of the dying declaration would put the court on the guard and induce it to apply a rule of caution. There may be cases wherein the part of the dying declaration which is, not found to be correct is so indissolubly linked with the other part of the dying declaration that it is not possible to sever the, two parts. In such an event the court would well be justified in rejecting the whole of the dying declaration. There may, however, be other cases wherein the two parts Page No.17 of 19 IN CRA-1009-2019 of a dying declaration may be severable and the correctness of one part does not depend upon the correctness of the other part. In the last mentioned cases the court would not normally act upon - part of the dying declaration, the other part of which has of been found to be true, unless the part relied upon is corroborated in material particulars by the other evidence on record. If such other evidence shows that part of the dying declaration relied upon is correct and trustworthy, the court can act upon that part of the dying declaration despite the fact that another part of the dying declaration has not been proved to be correct. 19. The prosecution also led evidence to show recovery of unlicensed gun and two cartridges from the field of Godhu in pursuance of his statement. This evidence does not connect Godhu accused with the crime of murder of Gheru deceased because there is nothing to show that the said gun was used for the murder of the deceased. We thus find that the material on record is bereft of any evidence which may lend corroboration to the dying. declaration of Gheru deceased regarding the complicity of Godhu. It is, in our opinion, not safe to base the conviction of Godhu accused upon the uncorroborated dying declaration of Gheru deceased in this case.” (23) Reverting to the facts of the present case in light of the above principles of law laid down by their Lordships of the Supreme Court, it is quite vivid that though the dying declaration (Ex.P/22) has partly been disbelieved by the learned trial Court while acquitting the appellants for offence under Section 498-A & 326 of IPC, but there is no corroboration on behalf of the prosecution qua another part of the dying declaration (Ex.P/22), which has been accepted by the learned trial Court for convicting the appellants for offence under Section 302 of IPC. As such, since the dying declaration Page No.18 of 19 IN CRA-1009-2019 (Ex.P/22) remained uncorroborated, therefore, as held in Godhu (supra) it would not be safe to base the conviction of the appellants upon the uncorroborated dying declaration (Ex.P/22) of the deceased. We hereby hold accordingly. (24) Accordingly, in view of afore-mentioned reasons, since the dying declaration (Ex.P/22) does not inspire confidence, as the same is not voluntary and trustworthy and further the same is also uncorroborated with regard to offence under Section 302 of IPC is concerned, therefore, the learned trial Court has committed grave legal error in relying upon the dying declaration (Ex.P/22) to convict the appellants herein for offence under Section 302 of IPc. Consequently, we are unable to uphold the conviction and sentence of all the appellants, as awarded by the learned trial Court, and the appellants are liable to be acquitted of the said charge on the basis of benefit of doubt. (25) In view of the foregoing analysis, the conviction of all the appellants for offence punishable under Section 302 of IPC as well as the sentence of life imprisonment alongwith the fine and default stipulation, as imposed upon them by the learned trial Court, is hereby set aside. The appellants are acquitted of the said charge on the basis of benefit of doubt. Al the appellants are reported to be in jail, therefore, we direct that they be released from jail forthwith, if not required in any other matter/case. Page No.19 of 19 IN CRA-1009-2019 (26) Consequently, this criminal appeal is allowed. (27) Let a certified copy of this order alongwith original record be transmitted to the trial Court concerned as well as to the Superintendent of Jail where the appellants are languishing for necessary information and action, if any. Sd/- Sd/- (Sanjay K. Agrawal) (Deepak Kumar Tiwari) Judge Judge s@if