HIGH COURT OF CHHATTISOARH AT BILAWUR DIVISION BBNCH CORAM: HON'BLEMR. T.P.8HARMA& HON'BLB MR. R.L. JHANWAR. JJ. APPBLLANT InJail VBRSUS Cr. A. No. 128/2006 Vyay Elcka S/o Kiran Ekka Aged 32 years, By Caste Uraon, Occupation Agpricultural, R/o ViUage Baldrama (Batuabuda) P.S. Gandhinagar, Distt. Sai^uja (C.G.). RESPONDBNT The State of Chfaattisgarh Through P.S. Gandhi Nagar District Sarguja (C.O.). CRIMINAL APPBAL U/S 374 (2t OF Cr.P.C. Present- Shri D.N. Prajapati, Advocate for the appeHant Shri Sandeep Yadav, Dy, G.A» jfor fhe State/resp©Bdent, ORAL- JUDGBaUBNT (Passedon 23/02/2011) The followias iudsment of the Court was oassed bv T.P. Sharma. J:- 1. ChaUenge m tliis appeal is to fhe judgment of conviction and order of sentence dated 30/12/2005 passed by Sessions Judge, Sui^uja (Ambikapur) m Sessions Trial No. 132/05 whereby and where under affcer holding ftie appellant guilty for (he commission of offence of culpable homicide amounting to miirder of his wlfe Phoolsundari convicted fhe appeUsait iinder Section 302 of fhe Indian Penal Code and saitenced ;%>. ^ ^SS3S^"^:y ^ ^ rigorous imprisonment for life and fine of Rs. 200/- in default of payment of fine amount additional rigorous imprlsonment for 1 montti. Conviction is unpugaed on the gromid that wifhout any iota of evidence sufficient for conviction of fhe appeUant, Court below has convicted and sentenced the appellant as aforementioned and fhereby committed an megaUty. As per case of ftie prosecution, on 23/1/05 at about 3:00 A.M. at nigtit Phoolsundari (siace deceased) wife of af)peUant was present in her house along wifh appeUant, appellant poured kerosene oU over her body and set her ablaze and thereby caused 60% to 70% bum mjury. On second day moming he informed other persons, relatives and brothers of Phoolsundari thereafter they took fhe injured Phoolsimdari to Holy Cross Hospital, Ambikapur. On 23/1/2005 at about 12:10 P.M. she was firsUy attended by PW2 Dr. Vijay Anand Singh who examined her vide Ex. P-3 aad found 60% to 70% super&cial deep bnm tnjuiy. As per history, she received bum injuiy by kerosene lamp at 3:00 A.M. on 23/1/05. During course of treatment, on 24/1/2005 at fhe instance of investigatmg Officer PW3 Shri R.N. Pandey, Executive M^strate has recorded dying declaration at 6:50 P.M. vide Ex. P-4 after •'^ w*~. ' /.' -^' ''%:3S '/ ^'^ a obtaining certfficate from doctor about her ability to give dying declaration in which she has stated that her husband i.e. appellant poured kerosene oil over her body and set her abla25e. During course of treatment, she died on 3/2/2005. Marg was mtimated vide Ex. P- 10 and Marg was recorded vide Ex. P-11 on fhe basis of Ex. P-11 First Information Report was lodged vide Ess. P-13. Spot map was prepared vide Ex. P-15. Contatoer of kerosene oil and Matchbox were seized from the spot vide Ex. P-8. After summing fhe witnesses vide Ex. P-1, inquest over the dead body of deceased Plioolsundaii was prepared vide Ex. P-2. Dead body was sent for autopsy to Gtovt. Hospital, Ambikapur v^le Ex* P-7 where team of doctors consisting PW5 Dr. J.K. Btiutani and Dr. Smt. Shipra Shrivastava condueted autopsy vide Ex. P-6 and found foUowii^ injuries:- Right side of fhe face, part of chin, bofti the hands, chesty abdomen, back and bolii the scapular region, spmal<:ord region, part of right thigh, part of left fhigh, upper part of lower limb, lower part of teft Umb was bumt. Body was bum up to 60%. Cause ofdeath was toxemia. 4. Statements of fhe witnesses were Fecorded under Section 161 ofthe Code ofCriminal Procedure, 1973 (in short <the Code'). After completion of the invest^ation e a change sheet was filed before fhe Judicial Ma^strate Ftrst Class, Ambikapur who in tum comniitted the case to the Court of Sessions, Ambikapur. 5. In order to prove fhe guilt of the appeilant/acscused prosecution examined as many as 11 witaesses. Accused/appeUant was examined under Section 313 of the Code where he daiied the circumstances appearing against him, innocency and false iinpfication is crime in question is claimed. Accused/appellant tias tafeen defence that after death of Rioolsundari, her bFothers have annoyed and has falsely implicated hiiu, he was not present m fhe house on the date of tocideat, he came at 6:00 A.M. at mommg where he saw burat body of his wife and kerosene lamp (Dfibr^. He has also examined defence witness DW1 Shobhnath, his son who has deposed that he along with his brother were sleeping in the same house, her mother was sleeping anofher room at about 5-6 A.M. at moming appeBant asked them fhat how his mofher bumt, at that time his mother was lying in Baranda m bumt condition. 6. After affording an opportunily ofhearing to fhe parties leamed Sessions Judge, Surguja (Ambikapui) has convicted and sentenced the appellant as aforementioned. <c ^ Shri D.N. Preuapati, Advocate for fhe appeBaat and Shri Sandeep Yadav, Dy. G.A. forthe State/responda^t are heard. Judgnient impugned and record of Court below perused. Leamed counsel for fhe appeflant veheinenfty at^ued that relation between appellant and deceased Phoolsundari were cordial, there was no cause for causmg such deafh of Phoolsundaii i.e. wife of appeUant. Leamed counsel for the appeUant fiarther argued tfaat iajured Phoolsundari was firstly attended by PW2 Dr. Vijay Anand Singh who has deposed fhat as per infonnation given by mjured Phoolsundari, she received bura injury by kerosene lainp on 23/1/2005 at atoout 3:00 A.M. He has examined her on same dayat 12:10 P.M., which reveals fhat bum injmy as a result of accident. Appellant has not caused bum mjuiy to deceased Phoolsundari. Evidence relatmg to dying declaration of Phoolsundari to PW3 Shri R.N. Pandey, Executive Magistrate and alleged evidence of oral dying declaration given by deceased Phoolsundari to PW1 Ravi & PW9 Shivshankar does not inspire confidence, trustworthy and same is contradictoiy to fhe evidenee of PW2 Dr. Vijay Anand Singh who has attended tfoe mjured first time. Evidence collected on behalf of the -;<a fe fe. prosecution is not sufiiciait for ftie conviction of tfae appellant. 10. On the ofher hand, leamed comisel for fhe State/respondent opposed fhe appeel and argued ftot evidence of PW2 Dr. Vijay Anand Singh itself is suspicious and same has been contradicted by ftie evidence of defence witness DW1 Shobhnatfa, son of deceased and appellant who has deposed tn his evidence that they do not used DibriLe, kerosene lamp in their room, which suffice the defence that deceased Phoolsundari has died as a result of bunA mjmy by kerosene lamp. 11. Leamed counsel for fhe State/respondent fiirther argyed that statement of PW3 Stei R.N. Pandey, Executive Magistrate who has recorded dying declaration of deceased Phoolsundari Ex. P-4 which inspire confidence, trustworthy and corroborated by the evidence of PW1 Ravi & PW9 Shivshankar, brofhers of deceased Phoolsundari. These evidence are sufiicient for drawing an inference that injured Phoolsundad has made dying declaration that present appellant has poured kerosene oU over her body and set her ablaze and thereby caused bum iajuiy. ^^.. .-f'"^3 ^: ^ (fc ^. 12. In order to appreciate fhe argument advanced on behalf of fhe parties, we have examined the evidance adduced on behalfofthe parties. 13. In fhe present case, death as a result of bum mjiuy of Phoolsundad has not been substantially disputed on behalfoffhe appeUant on fhe other hand otherwise also established by the evidence of PW2 Dr. Vijay Anaad Singh who has first tune attended fhe tajured Phoolsundari and medical report Ex. P-3 8& evidence of PW5 Dr.J.K. Bhutani and autopsy report Kx. P-6. Deceased Phoolsundari died as a result of bum ta|uiy and its complication. 14. As regard flie question of homicidal deafh of Phoolsundari and compUcily of the appeUant in crime in question, conviction is substantially based on the evidence relatmg to oral dying declaration made by deceased Phcx>lsundari on 23/1/2005 to her brothers PW1 Ravi & PW9 Shivshankar and dyii^ declaratitm given to PW3 Shri R.N. Pandey, Executive Magistrate who has recorded it as Ex. P-4. Dying declaratiton is also a kind of evidence and same is proof to be Irue then same is suffident for conviction of ttie appeUant/accused. ,.€^ ..^'^, ^'^-^ t\ i 'w % &- 15. Principle of dying declaration is based on le^d maxiai "nemo montums proesumitw mentirf- a man wiU not meet his maker wifh a lie ia his mouth. 16. Lord Chief Justice Baron Eyre {See. R. v. Woodcock, (1789) 1 Lea 502) expressed his view relattog to dying declaration as follows:- tt...That such dedarations evre madte m extremityf when the pcaiy is at the point of death, and when every hape ofthis world fe gone; when every moftW (o fdlsehood is silenced, and the fmnd is induced bg Ihe mosf powerful consideration^ <a speafc ffw . truth; a situcstion so solemn and so cw^td te considered by the law as ereatmg cm obligatior^ egua? to <ha( which fe myposedby apositive oath in a court ofju^tioe...9 17. WhUe dealmg wifh ftie question of dying deelaration, the Supreme Court in fhe matter of State of U.P. v. Ram Sagar Yadav1 has held fhat if the CouTt is satisfied that the dying declaration is true and voluntaiy it can based conviction on it, witiiout corroboration. 18. tn the present case, PW2 Dr. Vijay Anand Stogh who has deposed ia Para-2 of his evidence ftiat injured Phoolsundari has informed him fhat she has bumt by kerosene lamp on 23/1/2005 at 3:00 A.M. As pe»his evidence and Ex. P-3, she was bumt up to 60-70% of 'AIR 1985 SC 416 1^ superficial and deep bum ir^iuy. In his cross- examtnation by defence, he has admitted that iiiijiired Phoolsimdari was in conscious and was able to state but bum injiuy was serious m nature. 19. Defence has examined DWl Shobhnath, son of deceased and appellant, as per Ns evidence, appellant was not present m his house and he was busy in Panchayat election, he along with his brother after taking n^ht meal went for sleepuag, at m<Mning ttaie between 5:00-6:00 A.M. appellant i.e. his father asked him fhat how his motlier bumt but he was silent As per Para-4 of his evidence, his mofher was not in position to talk, she was agonteii^ and was tying m ftie Baranda. As per Para-8 of his evidence, fhey do not used kerosene lamp in their room, tals moltier also do not use kerosene lamp. As per Paras-9 & 12 of tiis evidence, he came to know about biini ii^iMy of his mofher onty by his father who also told him fhat Ns mother has bumt by kerosene lamp. 20. As per Para-2 of evidence of FW1 Ravi bothCT of deceased Phoolsundari, he has arranged fbe vehicle for taldng the injured Phoolsundari and they took her to the hospital. As per evidence of PW2 Dr. V^ay Aiiand Singh, he has examined injiired Phoolsundari at about 12:10 P.M. at noon i.e. after 9 hours of atleged m<ddent ^A -^? 5^- 10 ^6 aad after 6 hours of alleged knowledge of appeUant and his sons specially when fhe distance of hospital fix>m the place of incident is only 15 K.M. as per First Information Report Ex. P-13. 21. As per evidence of PW3 Shri R.N. Pandey, Executive Ma.g^stcate, on 24/1/2005 he has recorded dying declaration of Phoolsundari at 6:50 P.M., before recording her statement he obtained certificate fi^om ttie doctor, he has recorded statemeat in question & answer form and in following manner.- 1R*T : ^fqW^iff ? ^wR : ^ ufcft ^l TO'T : ^ vRft ? ^S^K : ^Q ^S f^W ^ i3W? PlccS ^Rf ^g %rg f^ir fi6^ in^w cpff ^nri liyT : ^¥9 vrfdi^l ? ^3wR : ^EraR fil?? ^SST l^ ^rf^R?PT^T«nt WT : ^Q wr ^>r ws^i «ff? ^wR : ^ Wl^ ^aft ^I^ 3^ ^ffl W*T : q?r IR sgih? ^T ^«Tc^T ^ ? ^twR : \rfdl€lWTO ^N ^t^ KlH^Ct il€f w t ^? ^ ^fSt ^lRteRT ^l 22. He has further deposed in Para-2 of tus evidence that what question he has put and what answer Phoolsundari has given. He has also deposed that after recording her statement again, he has obtatoed certificate form the doctor, he has obtained fhumb impression of Phoolsundari. In his detail cross- 11 ® ""^s?-. c examination, he has spedficaMy deposed thset Phoolsundari was able to gwe stateinent, he has recorded her statenient and has obtained certifflcate from fhe doctor before recording her statement andadso after recording her statement 23. PW1 Ravi, brother of deceased Phool^mdari has substantially deposed in his evidence fhat he was informed by DW1 Shobhnath about the inicident then he went to fhe house of appeflant where his sister Phoolsundari was lying on the bed, she was badly bumt and she made dying declaration that h^ husband i.e. appeUant Vijay poured kerosene oil over her body and set her ablaze fhereafter he fled from fte house between 2:00-3:00 A.M. He has also deposed that relative of appellant were present in the house but they are not maldng any efforts for her treatinent thai he arranged Van and brou^it her to Mis^on Hospital, Ambikapur between 12:00-1:00 P.M. where she was treated. On 3/2/2005 she died. 24. PW9 Shivshankar has deposed in his evidence tbat when he was mformed that his sister has admitted in Mission Hospital, Ambikapur fhen he went to fhe hospital. His sister Phoolsimdari uiade dying declaration ftiat present appellant poured kerc^ene oil over her body and set her ablaze at 3:00 A.M. Defence -•a^, ffi^ 12 has cross-examined bofti fhe witnesses but tfaey have not been able to illicit anything in their cross- examination to discredit ttieir testimony relating to factum of dying declaration made by deceased Phoolsundari to fhem. Defaace has also cross- examined PW3 Shri R.N. Pandey, Executive Magistrate in detail but he has not been able to illicit anyfhing to discredit his testimony relating to facttam of dymg declaration given by deceased Phoolsundari to hlm and it has corroborated by Ex. P-4 and evidence of PW1 Ravi & PW9 Shivshankar, bro^iers of deceased Phoolsundari before fhem deceased Phoolsiindari have made orol dying declaration. Aforcsaid evidence inspire confidence, trustworthy and are safe to rely that deceased Phoolsundari has made trufhfiil dying declaration before fhem fhat appellant has poured kerosene oU over her body and set her ablaze. It is further corroborated by fhe evidence pf PW1 Ravi that present appellant even after kaowing the fact of aforesald injmy at about 5:00-6:00 A.M., fhey have not make aaiy efifort to arrange the vehicle for taking her to hospital, fhey have not called any doctor and they have not provided any medical faciMly to injured Phoolsundari. 13 26. 25. DW 1 Shobhnath, 16 years aged boy was sleeping ua his house but he did not know fhe fact of 60-70% toium hijury of her mofher. Aforesaid evidence are suffieient to establish fhe fact fhat Phoolsundari has made torufhful dying declaration and as a result of bum injury, she died on 3/2/2005. After appreciating fhe evidence available on rccord leamed Sesstons Judge Sui^uja (Ainbikapur) has convicted the appellant under Section 302 offbe Indian Penal Code. Evidence adduced on behalf of fhe prosecution 1s sufiicient for drawiag an tnference that present appeUant has caused homicidal deafti wifh intent to cause her deafh. While convictii^ and sentencing fhe appellant under Section 302 of fhe Indian Penal Code leamed Sessions Judge, Surgu^i (Ambikapur) has not committed any illegality warranting any mterference in exercise of appeUate jurisdiction. For the fore^oing reasons, crimtnal appeal is devoid of merits, same is liable to be dismissed and is herely dismissed. 27. Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge 7^~