x N THE HIGH GOUBT OF GHBATTISGARH AT BILASP‘JR I cr.A.No. (I86 2001 [ Lohra Ram, 3/0 shri Jagdish Cheek, agad abom; 45 years, » /o Villsgé Singubal. (Sukhawasx 011) P.$.Kansabel, Tahf Bagieha, 1 stt . Jasm‘irnaglar, I Ghhawisgarh . gwmm Lin Jail) 3 LE} ski ¥_,, State cf anhattisgarh, through, P.S. Kansabel, Teh. Bagi‘cha, Bistt. Jas‘hpurn;agar. x * mg’mmim‘ . EmENeE ’ Rigemms Lifé’lm- risomnent wituh’ ’ £ine er §éoo/——f‘3s. in dsfault of fine further 8.1:. for 5 years. EN E Minm s cm 502 a? «I.P.Ca 1865 x V “ . v m.) wagmi‘l QF AP?EAL UNDER SEGTION § MA OF TgE GRIMINAL pgagmm camiggij. kt * x c ‘ R T g S p N XI-HC—7s , ‘ ' ' 2i} ~ 3am, Wan—qr, W113? , ocA-MO- [$£/Q001 Wm‘oo...oo.‘o‘tooto.xmo W 200 mm (W) XI-HC-78 mam, mfwmgt WW ' W9/%Q Fa 200/ WW (W) WWW‘ , WWW mmmm z WW§WW v $3i1'a‘11wé21 ‘ co itting the murder of his wife Bil [ani Bai, sentenced him to undergo gimp isonmcnt for life. r is that Bihani Bai herself lodged a 2. Case of the prosecution, in brie: ¢ report (ELF/Q) in Police Station — Kan 7.30; am. to the eEect that yesterday festxval of Dashhara her husband after wi his parents, whereupon her fathe r-in-law gave him one lathi blow. Th ‘eaiter. the matter was settled and he r in—laws went towards the field. In the Evening her son and daughter l festival. At about 8.00 p.m. when s e intervened in the quarrel, sent his quarrelljng with her saying that why s picked up’kerosene larnp,’ poured parents to the field, in the process, h kerosene oil on her body and set her on bum injuries on her breast, back, sto Hearing her cries her father-in-law Jag namely Laxman Ghusal, to whom she pm. in the night her son and daugh er came back from Kansabel. She ce it was night and there‘was no \\ informed them about the incident. S I t .t ;abel on 20m October 1999 at about s i.e. 19.10.1999 on the occasion of eonsuming liquor, started quarreling to Kansabel to watch Dashhara t was sleeping her husband started e, as a result ofwhich she sustained ach, waist, private parts and legs. sh came. He called one neighbour ated the incident. At about 11.00 P.T.O. W i WW,WW,W Wm‘Org/86 a1 200/ WW(W> WWW mmm mwffwm EEWTWW 3 §?3T%1¥311%¥T conveyance, shc could not lodge the report in the night. Based on this report an oEence under Section 307 of the EC was registered against Lohra Ram. Thereafter, the Station House Omcer toolE up the investigation and prepared the site‘pian (EXP/1 1) of the place of occunfence. Looking to the serious condition of injured Bihani Bai on he directions of S.D.M., Executive Magistrate; Kunkuri recorded the dying declaration (EXP/12) of Bihani Bai. She as medically exafnined by Dr. Shera Toppo (PW-11) who prepared the inj report (EXP/13) in which he opined that the superficial bums were about 70% to 80%, bums were gievous in nature. During treatment in the Primary Health Centre, Kansabel, Bihhi‘i Bai succumbed to the bum injuries on 3i.11.1999. Thereafter, merg intimation (Ex.P/l) was sent to Police Station Kansabel whereupon the oEe ‘ e was converted into Section 302 of the IPC. The investigating ohicer pre axed the inquest report (EXP/6) of the dead body of Bihani Bai. Postmort was conducted by a team of doctors namely Dr. C.D. Bakhla (PW-7) and S t. V. Bakhla. The doctor opined that cause of death was septicemia due to m injuries. Aher usual investigation charge sheet was filed in the C urt of Chief Judicial Magistrate, Jashpurnagar who in tum committed e case to the Sessions Judge, Raigarh P.T.O. XI-HC178 mm,m,m Z .8£> o... ‘ 93’... WW a1 200/ mm (W) XI-HC-78 EW,WHTI§,W3I Wmgkafua$£$§Hn E 200} mum-(W) XI—HC-78 HW,W,W WWW WWW mmm WW§WW L ’ ‘ Vetmm J 1 ‘ ‘ ‘ > can be acted llpon provided the Court ultimately holds the same to be voluntary and truthful. A certinication by the doctor is essentially a rule of caution and therefore, the voluntary and-truthful nature of the declaration can be established otherwise. i statcment of the dac6assd was not as a result of either tutoring, or prompting or a product of imagination. In the mattsr of Laxman Vs State of Maharashtra reported in 2002(6) SCC 710 the Constitution' Bench of the Apex Court-held that where étfis proved by the testimony 01‘ the Magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration 10. Based on the above principle of law we have scrutinized the dying declaration as well as the evldence of PW—10 Ashok Kumar Agrawal, Executive Magistrate who recorded the dying declaration of Bihani Bai. PW- 10 Ashok Kumar Agawal has stated that on 20‘“ October 1999 he was working as Tehsildar, Kunkuri, on the direction of S.D.M. he went to record the dying declaration of Bihani Bai in Mission Hospital. At that time Bihani Bai was in a position to understand and g‘ve the statement. He also obtained a certificate of the doctor to this effect. Bihani Bai disclosed to him that she P.T.O. nut-arm C/r&/%é o1 2‘00; meow (W) XI-HC—78 HW,W,W ~ .Cm.@:‘..{f@.é... mm w 200/ mm (W) WWW mmm WW§WW : mmm a %wf%manam 1 ‘ ¥rA A was set on $6 by héi husband mar pouring k€rossne on her body b‘om a kerosena lamp. The dying declaration of Bihani Bai is EXP/12 which bears his signature from ‘A’ to ‘A’ rtion and thumb imprassion of Bihani Bai o ‘ from ‘B’ to ‘B’ portion. In his robs-examination hc has statod that it is true tbs; he came to know that her h band has set her on fire by pouring kerosene on her bodygby the requisition sent to him by the police as also from the disglosure of Bilrani Bai. He w s orally informed that Bihani Bai is in Govt. Mission Hospital. It is incorre t to say that he did not disclose to anybody the reason of his coming there. Bihani Bai was able to speak Hindi. On his enquiry, she disclosed as to how the incident took place. Perusal of the dying declaration (EXP/12) which been proved by PW—lO Ashok Kumar s categorically implicated her husband Lohra Ram saying that he set her on lamp. In the cross-examination of PW-IO. the defence has not been able to elicit anything which indicates t Bihani Bai was not in a position to give a was recorded she was subjected to tutoring. e The above dying declaration sta ds corroborated by the fact that Bihani Bai herself lodged the report (EX.P ) in the Police Station Kansabel, in which she categorically implicated th accused and stated that her husband Lohra Agarawa, reveals that Bihani B aher pouring kerosene from the kerosene e . statement or before her statem P.T.O. ' w XI-HC-78 HW,WW,W mm . .Qx...e.r...(i%.$.... a1 200! nmJk: \ XI—HC—78 EW,W§SW WW ’ .%.a3;.{.$£..... a1 200) Wm (13W) ‘ XI—HC-78 ‘ WWW '(o mmwwtm _$?3TF%1131I%¥T mind of Bihani Bai at the time of recording her dying declaration, is concerned, it is true that medi cal certificate has not been placed on record but from the evidence of PW-lU Ashok Kumar Agrawal, it is established that Bihani Bai was in a fit state of mind to give dying declaration. She herself 1 ioélged thc report in police st 14. As far as the argument of learned counsel for the accused/appellant that there is variance in the time of incident given in FIR and the dying declaration, is concerned, the tine of incident mentioned in FIR is 8‘00 p.m. Whereas in the dying declaration it is 4.00 p.m., looking to the evidence available on record regarding involvement of the accused in the crime in question as also the fact that Bihani Bai was an illiterate lady of village and ' that when shc gave the dying declaration, she was suffering horn pain, much P.T.O. EW,W,W ' Qf.&:.{.%.é.... V {E2001 WW(W) ion. Moreover, Bihani Bai sustained bum i injuries‘on 19.10.1999 whereas she died on 3rd November 1999, as such she was alive for ahout 14 days, th refore, from this fact it can safely be inferred that Bihani Bai Was in a fit sta e of mind to give dying declaration. Merely non-tendering of medical certificate of the doctor into evidence does not make the prosecution case doub tful. XI—HC-78 3am,m,i%lm$ ' WW v wzom a§wan% $ am$m Tm§w %en '4“ @na $§mh; ‘ aRmRa%aa $ n ‘ asaawm" v. WW (W) importanca can nof'be attachcd to the variance in the tims of incidant betwcen FIR and the dying declaration. 15. For the foregoing reason; we are of the considered Opinion that the iinding of trial Court convictin the accused for commission of the offence auhder Section302 of the EC an sentencing him for life imprisonment, does l not s&er from any illegality or ' irmity 4 16. In the fesult, the appea being devoid of substance is liahle to be dismissed and is accordingly dis issed;- ,a Sdl— L.C.BHADOO i Judge a r P.T.O.