HIGH COURT OF CHHATTISGARH AT BILASPUR (Division Bench) Coram: Hon'ble Shri T.P. Sharma & Hon'ble Shri R.N^Chandrakar, JJ, 4 Criminal ApReat No. 243 of 2007 Appellant (in jail) Vs, Respondent Smt. Tara Bai w/o. Narottam Chandrakar, aged about 30 years, occupation - Housewife, r/o. Behind Chandrakhuri School, Police Station, Pulgaon, District Durg (CG). State of Chhattisgarh through District Magistrate, Durg (CG). * (Criminal Appeal under Section 374 (2) of the Cr.P.C.) Present: Shri Sachin Singh Rajput, counsei forthe appellant. Shri Akhil Mishra, Govt. Advocate for the State. JUDGMENT (Delivered on 14-9-2011) Per T.P. Sharma. J. Challenge in this appeal is to the judgment of conviction and order of sentence dated 27-1-2007 passed by learned First Additional Sessions Judge, Durg, in Sessions Trial No. 188 of 2004, whereby and whereunder learned First Additional Sessions Judge, after holding theappellant guilty for commission of culpable homicide amounting to murder of Meenakshi Chandrakar by pouring kerosene oil over her and set her ablaze, convicted the appellant g•B 7 II ^•si B !—1 'N 111-11 ^X;i!a£i^lsl:;&i.£s.t..fit^i^.^.._.^ ...i 1^1 ^ eijs uaqi 'jeq uodn JB^BM psjnod (z/Md)-ie>|BJpueqo LUBHOJEN epun JSL| qoiijM uodn d|eq jo^ psinoqs paseeosa •8zeiqe JSL) )es pue je)|ejpueq3 lys^eueai/^ pssesoep JSAO |jo sussoja>| pejnod pue xoq qo}eiu '? |io euesoje)) q}jM siueo 'ueqo}!)) ui }U9M )ue|]edde eqt U94} 'deeMS 0} (ou iue||9dde 9L|t p3)|se je^BJpueqo iqs>|eus9|/\| peseeoap ueq/v\ 'pjeApnoo 914} BuidoaMS SBM leg EJBI }UB||9ddE pue esnoL) Jisifl ui •A'I BUII^OIEM ejSM (z/Md) JB>|BJpueqo lueyojeN spun JBL) pue je>|ejpueL)o !i|s»|Buaa|/\| peseeoea •esnoL) sqt ui (uesejd 9J9M je^ejpueqo !4S>|Buee|/\| pesesoep ;o epun pue tue||3dde eqi p pueqsnq '(g/Md) -I^BJPUBLJO LUBHOJEN pue je^ejpueijo iL|S)|BU98|/\| peseeosp '}ue||eddB "Lu-d 09'£tnoqe le frOOZ'Z'Zl. 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Deceased was taken to Chandulal Chandrakar Hospital, Durg, thereafter, she was shifted to Sector 9 Hospital, Bhilainagar where she lodged Dehati Nalsi vide Ex.P/7. She was immediately examined by Doctor Rohit Gupta (PW/15) vide bed head ticket Ex.P/11 to whom she gave report that her aunt Tara Bai poured kerosene oil over her and set her ablaze on 12-7-2004 between 3 - 4 p.m. She was 90% burnt and her burn injuries were 85% to .90% deep. During the courseof treatment her statement under Section 161 of the Code was recorded as Ex.D/7 before PW/14 Doctor Mamta Sikoriya and she had also narrated the same thing before her. During course of treatment she died and intimation thereof was sent to concerned Police Station vide Ex.P/8. Merg was recorded vide Ex.P/12 and finally merg was recorded vide Ex.P/14. FirstlnformationReportwaslodgedvideEx.P/13, bed head ticket was recorded by Doctor vide Ex.P/7. After summoning witnesses vide Ex.P/1, inquest over the dead body of the deceased was prepared vide Ex.P/2. Spot maps were prepared vide Ex.P/3 and P/4. Jerrycan containing kerosene oil, burnt clothes, broken pieces of bangles, burnt match-stick were seized from the spot vide Ex.P/5. Dead body of deceased was sent for autopsy to Govemment Hospital, Durg vide Ex.P/10 where Doctor Rajkumar Dhamle (PW/9) conducted autopsy vide Ex.P/11 and found 90% antemortem burn injuries. Carbon particles were found on trachea, lungs were congested and opined that mode of death was . -; 'A '?. "^ 6. due to neurogenic and hypovolemic shock. Seized articles were sent for chemical examination to FSL, Raipur and presence of kerosene oil was confirmed on seized articles vide Ex.P/18-A. Statements of witnesses were recorded under Section 161 of the Code of Criminal Procedure (for short, "the Code"). On the same day at 5.20 p.m. appellant also lodged Rojnamcha vide Ex.D/7. She was sent for medical examination and was examined by Doctor. After completion of investigation, charge sheet was filed against the appellant in the Court of Judicial Magistrate First Class, Durg, who in turn committed the case to the Court of Sessions Judge, Durg. Learned Additional Sessions Judge, received the case on transfer for trial who framed charge under Section 302 of the Indian Penal Code against the appellant who abjured the guilt. In order to prove the guilt of the appellant the proseGution examined as many as fifteen witnesses. Statement of the accused was recorded under Section 313 of the Code of Criminal Procedure, in which she denied the circumstances appearing against her, innocence and false implication in crime in question is claimed. She has examined the DW/1 Shesh Narayan Chandrakar and placed reliance Ex.D/8, D/9 & D/10. On the basis of her report, Ex.D/7 in which she has stated that on account of strained relations deceased Meenakshi Chandrakar and husband of appellant i.e., Narottam Chandrakar (PW/2) assaultedand kicked her, then she left the house of her husband, thereafter deceased Meenakshi Chandrakar herself poured kerosene oil over her and set her ablaze and thereafter she jumped into a pond which was informed rf» 8. to her by a person. On the basis of the aforesaid Rojnamcha, she was sent for medical examination and Doctor has noticed small abrasion over the chest, redness and tenderness in front of chest, swelling and redness over right eye, tenderness in back and smell of kerosene oil was coming from her clothes. She has specifically taken the defence that she has not poured kerosene oil upon the deceased Meenakshi Chandrakar and has not set her ablaze, but in order to implicate falsely deceased Meenakshi Chandrakar, uncie of deceased and husband of appetlant i.e., Narottam Chandrakar (PW/2) and their family members, who are official persons have falsely implicated her. After affording opportunity of hearing to the parties, learned Sessions Judge convicted and sentenced the appellant as aforesaid mentioned. We have heard learned coynsel for the parties and perused the record of the trial court as also the impugned judgment. Shri Sachin Singh Rajput, learned counsel for the appellant vehemently argued that he is not disputing the fact that deceased Meenakshi Chandrakar has not died as a result of burn injuries which she had received in her house where appellant and her husband were also residing and she had jumped into a pond. Learned counsel further submits that relation of the appellant with her husband and deceased was strained. Previously community meeting was convened and the mattervvas resolved within 15 days of such meeting. The incident took place in which appellant has been falsely implicated. Deceased Meenakshi Chandrakar and her 6_ k fU^ ^- -j- 10. uncle Narottam Chandrakar (PW/2) caused injuries to her, pushed her from house and after leaving the house by the appellant, deceased Meenakshi Chandrakar herself poured kerosene oil over her and set her ablaze with intent to implicate the appellant. He further submits that Dehati Nalsi (Ex.P/7), medical document Ex.P/11 and the statement recorded under .Section 161 of the deceased (Ex.D/7) are concocted and the same does not inspire confidence and trustworthy. In case of burn injuries of 85% - 90% she would not be in a position to give any statement. Thus, her stgtement becomes doubtful. The evidence adduced on behalf of the prosecution may be sufficient raising suspicion that the appellant might have committed the offence, but the same is not sufficient to prove the fact that the appettant caused homicidal death of deceased. On the other hand, Shri Akhil Mishra, learned Govt. Advocate for the State opposed the appeal and submits that evidence adduced on behalf of the prosecution is sufficient to establish the fact that only the appellant has poured kerosene oil over deceased and set her ablaze. He specifically submits that as per evidence of DW/1 Shesh Narayan Chandrakar, he produced the documents Ex.D/8, D/9 & D/10. Although two documents i.e., report ofSub Divisional Officer of Police and medical examination of appellant are available on record, but do not reflect its marking as Ex.D/9 & D/10 but the evidence of DW/1 Shesh Narayan Chandrakar ctearly establishes that those documents have been marked as Ex. D/9 & D/10. The Court has also considered these documents in _Efe + f <L_fl l^i' ^ i! ^ + \'^ the judgment, therefore, these are treated as Ex.D/9 & D/10. He further submits that medical evidence of present appellant clearly reveals that smell of kerosene oil was coming from her clothes which was not possible in case she left her house before pouring kerosene oil by Meenakshi Chandrakar herself and setting her ablaze by herself. These documents also support the case of prosecution. After appreciating the evidence available on record, learned Additional Sessions Judge has rightly convicted and sentenced the appellantas aforementioned. 11. In order to appreciate the arguments advanced by learned counsel for the parties, we have examined the evidence adduced on behalf ofthe prosecution. 12. In the present case, unnatural death of the deceased as a result of fatal burn injuries of deceased Meenakshi Chandrakar has not been substantially disputed on behalf of the appellant. On the other hand, itis also established by the evidence of Doctor Rohit Gupta (PW/15) and autopsy report (Ex.P/11) (medical report also marked as Ex.P/11) that the death of deceased Meenakshi Chandrakar was homicidal in nature. 13. As regards complicity of the appellant in the crime in question, conviction is substantially based on the evidence of PW/2 Narottam Chandrakar, Dying Dec!aration given by the deceased exhibited as Dehati Nalsi (Ex.P/7), the history recorded by Doctor Rohit Gupta (PW/15) at the time ofadmission and bed head ticket Ex.P/11, her statement recorded under Section 161 of the Code Ex.D/7 recorded by PW/13 Manharan Banafar, Assistant Sub Inspector. z^^ 14. First statement of deceased Meenakshi Chandrakar was recorded as Dehati Nalsi by PW/13 Manharan Banafar, Assistant Sub Inspector who also recorded Ex.D/7. He has deposed in his evidence that he has recorded Ex.P/7 & D/7 at the instance of Meenakshi Chandrakar which reveals that the present appellant poured kerosene oit over her and set her ablaze. Ex.P/1 1 history of patient was recorded by PW/15 Dr. Rohit Gupta. As per evidence of Rohit Gupta (PW/15), dceased Meenakshi Chandrakar was admitted in Sector 9 Hospital on 12-7-2004 at about 8.30 p.m. He examined her and asked about injuries, then she informed him that her aunt Tara Bai has poured kerosene oil over her and set her ablaze. On the same day he had taken note that the incident occurred between 3-4 p.m. (Ex.P/11). Defence has cross- examined this witness atlength. He has specifically deposed in para 5 that deceased Meenakshi Chandrakar was burnt to the extent of 90% but she was not unable to talk. As per evidence of PW/1 Lalita, mother of the deceased, deceased made oral dying declaration before her. PW/3 Mukund Chandrkar, father of the deceased has also deposed the same thing. PW/2 Narottam Chandrakar who was present at the time of incident has deposed that at the time of incident appellant and Meenakshi Chandrakar quarreled, the appellant pushed down Meenakshi Chandrakar, thereafter he slapped twice the appellant i.e., his wife. After five minutes deceased Meenakshi Chandrakar came to him crying for help. She was burning and he poured water over her and tried to torn her clothes which she was wearing, thereafter she + •e^ I^t'l 1^^ ^l "'• ^n 'ia yt-11 i i'ffi^ +.1 jumped into a pond. Thereafter he took her to hospital for treatment where she gave dying declaration before him. Defence has cross-examined these witnesses at length, they are close relatives of the deceased but also close relatives of the appellant. Defence of the appellant that Ex.D/9 and other document reveals that the relation of the appellant with PW/2 Narottam Chandrakar and his family members was not cordial and therefore was strained but the fact remains that at the time of incident appellant was present in her matrimonial house. She has lodged Rojnamcha (Ex.D/7) in which she has stated that she was beaten and pushed by PW/2 Narottam Chandrakar and deceased Meenakshi Chandrakar, then she left the house and thereafter Meenakshi Chhandrakar poured kerosene oil over her and burnt herself, thereafter she jumped into a pond which was informed to her by other persons. Her immediate lodging the report reveals that after leaving the house of PW/2 Narottam Chandrakar by the present appellant, the incident relating to burn took place inside the house of PW/2 Narottam Chandrakar but her medical report Ex.D/10 reveals that swelling and tenderness were found over the body and smell of kerosene oil was coming from her clothes. She has not taken the defence or stated in Ex.P/7 that at the time of pouring kerosene oil she was present near the deceased or smell of kerosene oil was coming as a result of any other cause or incident. -•i-miwItS' 10 15. The principle of dying declaration is based on legal maxim "nemo mohturus proesumitur mentin'"— a man will not meet his maker with a lie in his mouth. 16. Lord ChiefJustice Baron Eyre {See. R. v. Woodcock, (1789) 1 Lea 502} expressed his view relating to dying declaration as follows: - "...That such declarations are made in extremity, when the party is at the point of de^th, and when every hope of this world is gone; when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak fhe truth; a situation so solemn and so awful is considered by the law as creating an obligation, equal to that which is imposed by a positive oath in a court ofjustice..." 17. While dealing with the question of dying declaration, the Supreme Court in the matter of State of U.P. v. Ram Sagar Yadav has held that if the court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. 18. The evidence of PW/13 Manharan Banafar, Assistant Sub Inspector, PW/15 Doctor Rohit Gupta, Dehati Nalsi Ex.P/7, statement of deceased recorded under Section 161 of the Code, patient historyEx.P/11 recorded by Dr. Rohit Gupta (PW/15), evidence of PW/1 Lalita, PW/2 Narottam Chandrakar, PW/3 Mukund Chandrakar clearly reveal that the evidence of the aforesaid witnesses are sufficient to establish the fact that the present appellant has poured kerosene oil over Meenakshi Chandrakar and set her ablaze. The medical examination report of appellant Ex.D/10 also corroborates the factum of her presence at the time of such incident. Thus, these evidence are sufficient to ,!AIR1985SC416 '11;':!t. =pfl- 11 19. establish the fact that the present appellant poured kerosene oil over deceased and set her ablaze which was ultimate result of her death. After appreciating the evidence available on record, learned Additional Sessions Judge has rightly convicted and sentenced the appellant as aforementioned. On a close scrutiny of the entire evidence available on record, we do not find any illegatity or infirmity in the judgment of conviction and order of sentence. Consequently, the appeal being devoid of merit is liable to be dismissed and is hereby dismissed. ___-- Sd/- T. P. Sharma Judge SA'- ^.Chaadra^ ludge Raju ..i..il,—