While ruling on a very significant legal point pertaining to re-recording of dying declaration by a police officer, the Chhattisgarh High Court in a very learned, laudable, logical, landmark and latest judgment titled Sumitra Bandhe v State of Chhattisgarh in Criminal Appeal No. 292 of 2014 {Arising out of judgment dated 27-1-2014 in Sessions Trial No.186/2012 of the 1st Additional Sessions Judge, Durg} that was pronounced recently on February 6, 2023 has minced just no words to mandate that a police officer should not re-record a dying declaration which has already been recorded by an Executive Magistrate, who is a competent and better authority under law to do the same. It must be mentioned here that the Court was amazed to note that even after the first dying declaration was recorded by a legally competent authority, i.e. an Executive Magistrate, a Head Constable went to record the second dying declaration barely after an hour. So the Bench held that the second dying declaration recorded by the Head Constable was completely unnecessary and uncalled for in the light of the decision of the Supreme Court in Dalip Singh. Resultantly, we witnessed that the appeal was allowed and the impugned judgment of conviction was set aside.
At the very outset, this notable judgment authored by Hon’ble Justice Shri Sanjay K Agrawal for a Division Bench of the Chhattisgarh High Court comprising of himself and Hon’ble Justice Shri Radhakishan Agrawal sets the ball in motion by first and foremost putting forth in para 1 that, “This criminal appeal preferred by the appellants herein namely Sumitra Bandhe (A-2), Dilip Bandhe (A-3) & Mamta Bandhe (A-4) under Section 374(2) of the CrPC is directed against the impugned judgment dated 27-1-2014 passed by the 1st Additional Sessions Judge, Durg, in Sessions Trial No.186/2012, by which while acquitting accused Faguwaram (A-1), the trial Court has convicted the present accused / appellants – A-2, A-3 & A-4 for offences under Sections 302 read with Section 34 & 498A of the IPC and sentenced them to undergo imprisonment for life & pay a fine of ₹ 1,000/- each, in default, to further undergo additional rigorous imprisonment for one year and rigorous imprisonment for three years & fine of ₹ 500/- each, in default, additional rigorous imprisonment for six months, respectively. Both the sentences were directed to run concurrently.”
To put things in perspective, the Division Bench envisages in para 2 that, “Case of the prosecution, in short, is that marriage of deceased Ramabai was solemnized with appellant No.2 herein Dilip Bandhe (A-3) on 16-5-2005 and out of their wedlock, they were blessed with a boy child, who was 3 years old on the date of offence. It is the further case of the prosecution that the three appellants herein one acquitted accused used to quarrel with deceased Ramabai stating that she is not fit for their family and she does not work at home. It is also the case of the prosecution that on 19-7-2012 at about 10:00 p.m., husband of the deceased – Dilip Bandhe (A-3) came to the house in inebriated condition and started abusing the deceased and thereafter, he tried to strangulate her and thereafter, he poured kerosene oil over the body of the deceased and thereafter, mother-in-law of the deceased – Sumitra Bandhe (A-2) & sister-in-law of the deceased – Mamta Bandhe (A-4) set her ablaze by a matchstick and thereafter, she was rescued by her brother-in-law and another sister-in-law and subsequently, she was admitted to District Hospital, Durg and thereafter, she was readmitted to Sector-9 Hospital, Bhilai where during the course of treatment, she succumbed to the injuries sustained by her and died on 25-7-2012. On 20-7-2012, when the deceased was admitted to District Hospital, Durg by her husband, Bhagwati Prasad (PW-3) – owner of the vehicle, Tilakram (PW-4) – neighbour & Naresh Kumar (PW-6) – neighbour, at that time, mother of the deceased – Gayatri Bai (PW1) & father of the deceased – Gendlal (PW-7) visited District Hospital, Durg. On 21-7-2012, the deceased was again admitted to Sector-9 Hospital, Bhilai where she gave the medical history to Dr. Uday Kumar (PW-14) that she sustained burn injuries accidentally while cooking on a kerosene oil stove at about 11:00 p.m. on 19-7- 2012 which was recorded in Ex.P-22 proved by Dr. Uday Kumar (PW-14). Thereafter, on 23-7-2012, written report was made by Gendlal (PW-7) – father of the deceased, to the police vide Ex.P-12 alleging cruel treatment on the part of the accused / appellants and pouring kerosene oil on the body of the deceased and setting her ablaze by which she suffered injuries. Thereafter, on 24-7-2012, dying declaration (Ex.P-17) was recorded by Executive Magistrate B.K. Verma (PW-9) at Sector-9 Hospital wherein the deceased implicated all the accused persons i.e. the three appellants herein (A-2 to A-4) and one acquitted accused (A-1) that they poured kerosene oil on her body and set her ablaze. Thereafter, dehati nalishi Ex.P-15 was recorded by Yoddha Prasad Deshmukh (PW-8) – Head Constable, on the instance of the deceased wherein it was informed that on the date of incident, husband of the deceased (A3) poured kerosene oil over the body of the deceased and mother-in-law (A-2) & sister-in-law (A-4) set her ablaze by matchstick. Statement of the deceased under Section 161 of the CrPC was recorded by Yoddha Prasad Deshmukh (PW-8) vide Ex.P-32 wherein the deceased has implicated the appellants herein in the offence in question. Thereafter, on 24-7-2012, FIR was registered by Yoddha Prasad Deshmukh (PW-8) vide Ex.P-16 for offence punishable under Section 307 read with Section 34 of the IPC and on the next day i.e. 25-7-2012 at 10:30 p.m., the deceased died during treatment at Sector-9 Hospital, Bhilai and morgue intimation was recorded vide Ex.P-22 by Smt. Baby Nanda (PW-13) – ASI. Inquest was prepared vide Ex.P-14 and dead body was subjected to postmortem vide Ex.P-18 conducted and proved by Dr. Vipin Jain (PW-10) who opined that cause of death was septicemia and shock as a consequence of antemortem burn injury. Statements of the witnesses were recorded under Section 161 of the CrPC.”
As it turned out, the Division Bench then discloses in para 3 that, “After due investigation, the appellants were charge-sheeted before the jurisdictional criminal court and charges were framed against the appellants herein and one acquitted accused under Sections 302 read with Section 34 & 498A of the IPC and the case was committed to the Court of Sessions, Durg from where the learned 1st Additional Sessions Judge, Durg, received the case on transfer for trial and for hearing and disposal in accordance with law.”
It is worth noting that the Division Bench notes in para 20 that, “Reverting to the facts of the case in hand in the light of the judgment of the Supreme Court in Laxman (supra) followed with approval in Jagbir Singh (supra), it is quite vivid that though Executive Magistrate B.K. Verma (PW-9) is said to have obtained the medical certificate of fitness of the deceased before recording the statement, but no such certificate has been brought on record along with the dying declaration of the deceased for the reasons best known to the prosecution and even otherwise, Shri B.K. Verma (PW-9) – Executive Magistrate did not say that the patient was in fit condition both mentally and physically to give dying declaration. As such, the principles laid down by their Lordships of the Supreme Court in Laxman (supra) and Jagbir Singh (supra) have not been followed in principle, particularly in a case where the deceased / injured suffered 80-85% deep burn injuries. Accordingly, in absence of certificate by the doctor and in absence of any satisfaction recorded by B.K. Verma (PW-9) – Executive Magistrate, it would be unsafe to rely upon the dying declaration Ex.P-17, more particularly when the learned Executive Magistrate has recorded a note in the bottom of the dying declaration that while recording the statement, relatives of the deceased and police persons were not present which is falsified from the fact that Gayatri Bai (PW-1) – mother of the deceased, in her statement before the Court in paragraph 6 has clearly stated that at the time of recording dying declaration she was sitting with her daughter holding her and at that time, the Executive Magistrate, the doctor and the police, all were present, which is corroborated by the statement of Gendlal (PW-7) – father of the deceased in paragraph 18.”
Most glaringly, the Division Bench observes in para 22 that, “Thus, in absence of certification by doctor and in absence of any satisfaction recorded by the Executive Magistrate while recording the dying declaration that the deceased was mentally and physically in fit condition to make dying declaration, and presence of parents of the deceased at the time of making dying declaration especially the mother holding her and presence of police personnel at the time of making dying declaration, as possibility of her being influenced cannot be ruled out and it would be unsafe to base conviction on the dying declaration Ex.P-17 and we hold so accordingly.”
Most significantly, the Division Bench points out in para 24 that, “It is appropriate to mention here that dying declaration of the deceased was recorded by the Executive Magistrate – B.K. Verma (PW-9) vide Ex.P-17 on 24-7-2012 at 3:30 p.m. on the request of the investigating agency and thereafter, all of a sudden, on the same day at 4:45 p.m., dying declaration was recorded by Yoddha Prasad Deshmukh (PW-8) – Head Constable in the form of dehati nalishi Ex.P-15. Since dying declaration was already recorded by the Executive Magistrate on 24-7-2012 few hours prior to recording of dehati nalishi, we fail to understand what persuaded the Head Constable to record the statement of the injured victim without having any certificate from any doctor qua her fitness and without there being any necessity to record the dying declaration once having been recorded by the competent authority authorised to record the dying declaration.”
While citing the relevant case law, the Division Bench hastens to add in para 25 stating that, “At this stage, it would be beneficial to take note of the decision of the Supreme Court in the matter of Dalip Singh and others v. State of Punjab (1979) 4 SCC 332 in which their Lordships of the Supreme Court have dealt with the admissibility of dying declaration recorded by police officer during investigation and held as under: –
“Although a dying declaration recorded by a police officer during the course of investigation is admissible under Section 32 of the Indian Evidence Act in view of the exception provided in sub-section (2) of Section 162 of the Code of Criminal Procedure, 1973, it is better to leave such dying declaration out of consideration until and unless the prosecution satisfies the court as to why it was not recorded by a Magistrate or by a doctor.
The practice of Investigating Officer himself recording a dying declaration during the course of investigation ought not to be encouraged. It is not that such dying declarations are always untrustworthy, but better and more reliable methods of recording dying declarations of an injured person should be taken recourse to and the one recorded by the police officer may be relied upon if there was no time or facility available to the prosecution for adopting any better method.””
As a corollary, the Division Bench holds in para 26 that, “In that view of the matter, we hereby hold that the dying declaration Ex.P-15 was totally unnecessary and uncalled for in light of the decision of the Supreme Court in Dalip Singh (supra).”
Most forthrightly and as a consequence, the Division Bench directs in para 27 that, “In view of the aforesaid discussion, we are unable to sustain the conviction of the appellants under Sections 302 read with Section 34 & 498A of the IPC, as the conviction is not well merited. As such, conviction and sentences imposed upon the appellants under Sections 302 read with Section 34 & 498A of the IPC are liable to be set-aside and are hereby set-aside. The appellants are acquitted of the said charges. Since they are in jail, we direct that they be set at liberty forthwith if not required to be detained under any other process of law.”
Finally, the Division Bench concludes by holding in para 28 that, “The appeal is allowed accordingly.”
All told, the sum and substance of this extremely commendable judgment by Chhattisgarh High Court is that police officer shouldn’t re-record dying declaration if already recorded by Executive Magistrate. Of course, all the men in uniform must pay heed to what has been laid down so very clearly, cogently and convincingly in this leading case by the Court. No denying it!