-Dnnsiow:BEN©ite'"wa«.^a«^..wa CoraimH^B^MR.I^P.SHJyi^ HON'Bt-E MR.R.L.JWUWWR, <l.i^, Crinrtnal Appeal lto.1180 ot 2<»3 Shravan Kumar Verma Versus 't State <3T Chhattlsgarti JUDOMENT FOR CGNSIDERATtON Sd/- T.P. Sharaia Hon'bte Mr.R.L.Jhanwar, J. Sd/- R.L. Jhanwar Judge 23/^>010< Post fbr pronouncement irfthe Judgmenton ? • ®3^Q10 Sd/- T.P. Sfaarina Judge DIVISIONBENCH: Coram:H©N'BL&MR.T<P.SHMWffAar- HON'BLE MR.R.LJHANVUAR, J3 Criminal AppeatNo^SO^Zfl^^f^ Shravan Kunw Verma S/o Ra^a Ram, ^ed about Myeais, Rto Village-Naia^;; P.8,^ndir Hasaud, District^apur. ^ f Versus ' ; ,-- - :- -: :--;1"' State of CHhatfegarh Through P.S%! ? MamlirHasaud,Dis([lci-Ra^r^.(S^3S;i (CRMtNAL APPEAL UNDER SECTION 374(2) OFTHE e0©6^ CRlMlNALPROCEE3URE,1973^:E Appellant (In Jail) R^aindent Present:- Mr.K.K.Singh, counsel forthe appellant. MrArun Sao, Govt.MwcatetortWe ^ate. JUDQMEIin-...-^..."--'.- ':.,.-:--;:--:/-^^ (DeHveredc^^S^tenM»it20tQ^£ The ju<^ment of the Cpurt w^ delhw^ by T.P.Stugma, J-- \ • •••• 1. Chaltenge in this a^peal is to th&^jKl^ent of eotwic^m ^CT^ of sentence dated ^9.2008 psssedt^ltoS^Addtts^ (F.T.C.), Ra4iur, in Sesstor®^Trial No^ teamal 9fh Additiond S sie^ Jut^ al^ hddi%a^ commfesfem of offeroe oT cutpable homieKte of ftohnt IBa^^nee deceased) amountlng to murcter convkAed under Se<^t«m 302 I.P.C. andsentenGed him to undergo imprisonmerrtforltfeandtopay fine of Rs.50)/-, In defauttof paymert <^flne^^u(tt)er^N| i^^ fbcmonths. 2. Convictton te Impugned on the groundUiatv^out^Uiereb^^ evidence, (he trial Court h^jcorwh^^sertwic^ afi J....*a 1^' .».."sSM'»S ^KxSSS& 3. Case of theprosecution, in brief, isthat dweased Rohnj Bal, wtfeofthe appellant, was reskling with the appellant. The appaltantusedtOGemmit torture and cruetty up<wt her. On the fateful day of 6.9.2(X)2 at about 5.30 p.m., the appellant and his wife deceased Rohnl Bai were present inthe room, the appellant closed fhe door from instde and poured keroseneoil over her and set her ablpze. She was brought to;M«ilicar CoUege Hospital, Raipur for treatmenl. She was K<amtrred t>y Of«S(ntiA.SBSfr (PW-3) and tound ftat her both the thighs, baek, abdomenif ch^t, neck and face were bumt up to,70 per cent. Smell of kerosene was conr out from the body. She was shlfted to aurgical ward. Dtaing tl'recourae of trealment, her dying declaration ww recorded-by-the exetartive Magistrate M.L-Gupta (PW-6), Deputy Colleetor vide Ex.PWk, In which he has made dying dectaration that her husband Shrawan l^imar has poured kerosene oll over her whtle she was in room and s^ her ablaze. Rojnamcha Ex.P/21 was recorded on the basis ofdying declaratlon and finally F.I.R. was lodged vide Ex.P/5. During the cour^of treatment, she diedon 11.9.2002. Merg intimation was recorded vide Ex.P/l.After summoning the wltnesses vide Ex.P/6, inquest over dead body of Rohni Bal was prepar^i vkle Ex.P/7. Request was made for autopsy to Dr. Ambedkar Hospltal, Raipur vide Ex.P/8. Dr.Ullas Gonnade (R/V-2) conducted aulopsy vide Exf{2w^fo^y*to^jd^^^bamaww the body of the deceased except front part of leg betowthe teiee, some yast of umbilicus area and private part, un>er part of tece, ^dn of sealp and outer part of left thigh. Rests partwere badly bumt. She died on 11.9.2002 at 8.46 p.m., as a resuft of bum Ir^uries susteined to her. Spot map was prepared by investigatlng offfcer vide Ex.P/9. Panchnama of room where she bum was prepared vlde Ex.P/10. Part of sari along wlth soil, plain sott, broken pieces of bangles, bum piece of Mouse, bum matGh-stick, one chimney contalning 10 grams kQ'osene, one chimney containlng sufflcient amount of kerosene, one jerry can Gontamlng 50 grams kerosene and one mateh box were selzed from the spot vide Ex.P/11. One register was seized from Brujlal Natk vide Ex.P/12 relating to decision of caste community. Receipt aml Inland t^ters E)©.P/17to P/19 were seized vide Ex.P/13. One register was also seized from Brujlal Nalk vtde Ex.P/14. Another register was selzed from Umalcant lliiUi.i lllffil Bffll NMffl t^S '.|;i'!i. >• :!' • kii"? ^a-"'- ^: :w^:; ^^^^^ ---S'ii^^S'SS; Verma vtde Ex.P/20. Sprt map was prepaned by partwari vlcte Ex.P/22. Dectstons relatlng to dispute bdtween-thfr paittes^WBre selzed tride E)®.P/12Aand P123. 'S^sed artlcles weresent forGhemical ©(amlnatiOT and presence of kerosene was GonfinneclonsQUaiidlsuFR-ptee&^ctoth vldeEx.P/24. - ^ ^•.••^^..^^^^ 4. Statements of the wttnesses were recorded under Seetion 161 of the Cr.P.C. and after compl^ion of inve^tgation, charge sheet was filed before the Court of Judicial Magistrate Flrst Gte®s,Ra»pUr,who in tum committed the case to the C,(Surt of Sessions, Ralpur, ft'om where leamed 9th Additional Sessions Judges(F.T.C.), Raipur received the cgse on transfer for trial. ^ -.^^,.^.^ 5. In order to prove frie guitt of the aGCieed/appellant, fhe prosecution has examined as many as 13 witnesses. StatementoytheaGoused/appellant was recorded tmder Sectton 313 of the Gode where he denied the clroumstances appearing against himand pleaded Innocence and false Implication in the crime tn questlon. The appellant has ateo eianrined defence witness (wad consteble Gomti PraMd Pathak (rov-1} wrtio has deposed that he he®sent requisltion Ex.D/1 !n whiGh he-has mentioned that on 6.8.2001 at about 4.30 p.m. Rohni sustained Ixim injuries at ttw Ume of preparation of tea and has admttted in hoqaital. He has ateo deposed thsrt he has requested the Executive Maglstrate for recoreling of dying declaration wie Ex.D/2. 6. After providing opportunlty of hearing to the partte, leanied S^* Addttional Sesstons Judge convteted & sentenced the appeltant as aforemertioned. 7. We have heard leamed counsel tbr ttie parti^, perusedthe judgment impugned and record ofthe trial Court. 8. Learned counsel for ttie appellant vehementty argued that In the present case, conviction of the appellant Is based on alleged dying deGlaratfon made by the deceased on 9.9.2002 whteh does nd Insplre ponfldence and tmstworthy. Prior to maktng dying (iectaratton by the dweas«t, matter has beeo inquired by head constable Gomti frasad Pathak whom Rohni Bai has deposed that she sustained bum injuries at the thne of preparation of tea whlch completely exdude the possibillty of pouring , :!'^i'>ifef^ .lf?!;:;&S>, "'!<i ^r ^..^^^, sl:< ^' 4 s^ss-yys^S kerosene oit and ^Bng her aUaze, but afterwards when shecame into contact of her matemal relatives then on account of their advice and tutor she has made Talse dying cteclaratlon which is not admissibte in evidence. Leamed counael further argued that there was no occasion for pouring kerosene oil-over her arel settlng her ablaze; Leamed counset further argued tht the prosecution wltnesses have not suppCTted the case ofthe prosecutton. .^...^..^ :^ ,,r~ 9. Leamed counsel ptaced rellance In the malter of P. N»niv.State of Tamil Nadu in which the Sij^reme Court has held that tte prosecution te required to prove its case beyond all shadow of dout* and in Ga®e accused and deoessed were not seen last ttme together, then Swtion 106 of the Eviderice Act witl not come into play. Oeceasedsustained injuries inskte the romn which was closed Trom inslde. tn case, the the deceased to hospital are the cirGumstances to shew that dying declaration given by the dewased mayntrt be correct. l.eamed^iunsel Turther placed reliance in the matter of Lokendra Thrari v. State of C.G.2 in whfch this Court has held that throwing the bwn mateh-^ick on the floor where kerosene was poured ^iows thaton aceount of quarrel husband has taken such ^ep it was n<A causing to Intent trer death, therefore, conviction woutd be under SeGtk»i ^4 Part ^oflh&4.PXS. Leamed counsel ateo ptacwl reliance in the matter ef Ganesh Ram v. State of Madhya Praitesh' in whteh the High Cpyrt of Madhya Prsidesh has held that incldent toc* ptace all of sudclen vnthoyt intention of the appellant may be the knowtedge that by his act death may be caused, then conviction would be under Section 304 Part lofthe I.P.C. .On Vt\e other hand, learned State counsel supported the judgment impugned and argued that in the p-esent esse as per evidence of the prosecution wtnesses, the appellant used to Gommit torture and crueBy uponthe deceased. On the date of iRGident, the appellarrt peured kerosene oi! over her body and set her ablaze. Dying deGlaraUon reoorded by the Executlve Maglstrate is alone suffteient for drawing 'AIR 2006 SC 1319 22009(l)C.a.U.220(DB) 32010 (2) M.P.Il.T. 350 (UU) f3 i;ii?T ?^T ^]^r ;.i!?^:: ;"s^. s~ lllSiSftfc.t Blf"Bi<;!gSslSi§taeg:g inferenee that the present appellant hEseaised homicidal death of the deceased. •k,. 11.1n order to appredate the arguments advanced on behaif ofthe parties, we haveexamirred the evkterwe availabteonrecorcfe-w^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^-^^^^ 12.1n the present case, homicldal death of Rohnt Bai as a result of bum injuries has not been substantlatly disputed on behatf of the appellant, on the other hand, otherwise also ^tablished ^ the evidenee of Dr.Smt.A.Bosh (PW-3), her medteal examination report Ex.P/3, intlmation to poliGe Ex.P/4, evklenceof Dr.Ullas Gonnade ^PW^) and his autopsy report Ex.P/2 wtiich reveats that most ofthe partof body up to 2nd to 4h degree. She received bum injuries on 6S.2002:and died on 11.9.2002, within Five days and death was homicidat in nature, 13.As regards the complicity of the appeitant in the crime in question, incident tookplace in the house ofthe afqaeltant. As per ddtence ofthe appeltant and evidenc^ of Dr.Smt.A.Bosh (RW-3), the deceased was brought by appellant Shrawan Kumar showsthat at thetime of ineident the appellant was present jn his house when her wife sustelned bum injuries. The prosasution has not examtned wy e^witness to the inckient. The prosecutran has ptaced reliance of dying declaration made by the deceased and other ciroumstances. ExecutiveMagistrat^Deputy Gollector M.LGupta (PW-5) has deposed In his evidencethat Rohni Bai was admitted in Ward No.18, Bed No,26 In Dr.Bhimrao Ambedkar Hospital, Raipur. On the request of Police Station Mandir Hasaud, he went to hospital for recording dying declaration. He asked the doctor about her frtness. Doctor after examination gave certificate relating to her fitness in Ex.P/4, then he recorded dyingdeclaration ofinjured Rohni Bai (since deceased) after thumb impression of right leg on Ex.P/4A. He has further deposed that Rohnt Bai has told him that at the time of incident she and her husfcand were present in the room, the appellant closed the room from insMe and poured kerosene oil upon her andset her abtaze by mateh-stick. She has speQjfically slated that at the time of incident only herself and her husband were present In the room and her husband used to quarre! with her. Defence has examlned ftead constable Gomti Prasad Pathak (DW-1) who has deposed that he has sent letter Ex.D/1 ;:L?i^;?-t3^SiS^^^ '''''•'•-'f'-'i.-y^-S'.W-'';^.-^ to the doctor and asked that whether Rohnl Bat is in fit state of rrtnd to give stalement, thereafter, he has requested the Exearthre Magtetrate vide Ex.D/2 fbr recordirig her dying declaraUon. €>nthe ^asis of ExsO/l the dartor has given fltness certificate and this vrfhiess hES recorded dylng declaration of Rohni Bat (since deceased). Defence has cross- examined this witness In whlch he has denled the sugg^ion that at the time of recording dying declaratksn, Tather and mother ofthe deceased were present. He has admitted the suggestion that onty after (risftatning certlfteate relating to frtness pf RohniBai for giving slatemert he has recorded dying declaration. He t^as further deposed thatbrth ttre hands of Rohni Bai were burnt; therefore, he has obtatned thumb Impr^sion oS right teg of the decisased and has denied the suggestion that he has not recorded dying deciaration as perstatementgtvenbyher. 14.As regards the questton of previous relatlon of the appellant and deceased, the prosecution has examined Maniram (PW-4), Vedram Verma (PW-Q), father of the deceased smd Smt;©ylaril3 rt^ (PW-10), mother of the deceased, who have deposedin ttieirevtdaice that relation between the appettant and hts wrife were net cerdial. There was dlspute and some dispute was resolved by caste meeting. Even as per evidence of Vedram Verma (PW-9), father afthe deceasedfhe has deposed in para 5 of his evkleiwe that hte daughter has made dylng dectaration to him that the present appeHant her powed keresene oit over her and set her ablaze. Smt.Dularibai Verma (FW-10) has also substantialty corroborated the factum of dylng dectaration made by her daughtertoher. 15.As held bythe Supreme Court inthe matta-ofP. Mani j|su|Nra^, incase where the accused and deceased were not seen together ^ction 106 of the Evidence Act will not come tnto play andother Gondition may make thedying declaration in correct. In the present case, as per evidence of the prosecutlon witnesses, the appellant vreis presentln tfte room ofthe dweased along wlth her and no other person was present. In these circumstances, Uie appdlant was under obllgation tp explain the Gircumstanees that how his wife sistained injuries and how she bum, but the appeltant has not offered any explanation that how she aistain®! III «( .'ys. 'K9 iS' ;'i !: i' ;!f-il( :'iW ,"aa'S^;; injuries and howshe Nim. Thef^te of the cs^of P. Mart (aBtgw^are w distinguishaMetotoe^sKte^thepreserrtcase. <^ ^»^^^^^^^^^^^m^^^^^^^^^^ \, .. ." 16.1n the matter of Lokendra Tlwari (supra), this Court has hetd that after quarrel with wife, the husband has poured kerosene dl over her but instead of setting her ablaze he has threwn mateh-^iGk onthe ftoor where kerosene oil was spread, then she sustained bym injuries and died which cleariy show®thatona spur of moment the-aGcused has poured kerosene oit upon her wffe but has taken proper precairttein and has not set her abtaze tajt t&s thrown bum inateh-stiek wi the floor which cleariy shows that husbantl.was not having intention t&ltitl her wife. Therefore, conviction is altered to Sectton 304 Part H of the I.P.G. In the present case, the appellant has closed thedoor from insMe and set her w'rfe ablaze. The facts of the case of Lokendra Tiwari (aipra) are distinguishable to the facteof the present case. 17.As held by the High Court of Madhya Pradeshin the matter of Ganesh Ran (supra), incident tookplace all of sudden after smne quarrel. On the basls of such cireumstances the case was found under Seetksn 304 Part 1 ofthe I.P.C. and ncrt underSection 3CQ ofthe I.P.©.<n the present case, the appellant has fir^ly bolted the room from inside andthereafter poured kerosene oil over the body of the deceased and set her ablaze directly by in lighting mateh-box. She sustatned burn injyries pf2^to 4th degree. Most of the body was badly bumt, ckssing of door from inslde and directty set to herablaze shows the grave Intention of the appellant and has exctuded the possibility of her savlr^ butanyhowshe sa/ed for five days and finally died. The fads of the case of Ganesh Ram (siqara) are distinguishable to the facts ofthe present case. ^ iS.The principte of dying declaratton Is based on legal maidm "nemo morBun/s proesunntur mentirf'— a man will not meet his makw with a lie in hismouth. l9.Lord Chief Justice Baron Eyre {See. R. v. Woocteock, (1789) 1 Lea 502} expressed h!s view relating to dyfng declaratton as tollows: - "...That such dectarations are made in extremity, when the party is at the point of death, and when every hope pf this worid is gone; when every motive to falsehood is w^ lilll V:WSV!i lsll: sw 1B '^M. 8 ^;:^^^^)^t silenced, and the mlnd is^tnduc^ by 1^ mest powerftil ^ consiclerationstospeakWff^W^ and so awful isGonsidered bythe teB(»-a&uerea ^»8Nt"«||»' '!;:::' obligation, 'equal.to thatl^hicaiMMBpl8^KW3^WBIC$^ oath in a Gourt'ofjustieei:.."1——'- -.•^-l...-^--^.-:--« ",^l,-.,f.*a 20.WNIe dealing with the que^on of dyu^ clec*arartion,^he^SugragRe CotBi in the matte" of St^ of UJP. v. RainSagar'^dhKl*^IKttehtllirt ff^tt^ ^^BiS^sii.-^—.i^i,--.-•• court ts saUsfled that the dytng dwlaraUCTt is-true^an^'voltartargiNam base conviction on it, wlthout corroboration. 21.1n the present case, evidfshce of Executive Maglstr^ M.LGupta (PW-5), a responsible officer has cleariy shows thathe has reeorded the dytng declaration of the injured Rohni (slrea deceased) after taking proper precautton. .-....^-..f.^^.-... 22.After appreciatlng the evidence avatlable on r^iqrdl, teimed 9fh Addittonal Sessions Judge (F.T.C.), Raipur has<»nvi^edth®appeltant under Section 302 of the I.P.C. and sentwiG«i him-to tindergo imprisonment for tifeand to pay fine of Rs.500/-, In defautt of p^yment of finetofurtherundeTgoR.l.fbrsbcmonths. „„ 23.1n thepr^entcase, the appellant has onded thetiTe of his wlfe aged about 30 years whose llfe and ^iTety was in the hancteofthe •^)eNari and he was under obllgation to save h»,but instead of saving her life by taking proper precaution, he has caused injuries tothe deeeased by buming herand caused her death. GCTivtotton & sentence awarded to the appellant arejust and proper. 24-For the for^oing reasons, wre do not ftnd any lll^ality in the judgment impugned warranting any tnterference. Consequently, the appeal belng devoid of merit is liable to be dismissed_arrijtjs^ereby dismlssKt. Sd/- T.P. Sharrsa Sd/" R.L. Jhanwar Judge 'AIR 1985 SC 416