HIGH COURT OF CHHATTISGARH AT BILASPUR (Division Bench) Coram: Hon’bie Shri T.P. Sharma & m Hon’bie Shri R.N. Chandrakar JJ. Criminal Aggeai Nb. 4.3? of 200.8 1. Aggellants (in jail) ‘ Diiipls/o. Goieiai Satnami, abed about 4’1 years) Jhamin Bai, w/o. Dilip Satnami, aged about 38 years: Bhukhiya Bai,‘ w/b. Gofeiai Satnami, aged about 57 years. All r/o. viiiage Haihnikurd, Police Station Pathariya, District Biiaspur (Chhatiisgafh). Vs. Resgondent State of Chhattisgarh thrOug incharge Police Station Patharia, District Biiaspur (Chhattisgarh). qi:.-——m:.~ (Criminal Appeal under Section 374 (2) of the,Cr.P.C.) Present: appellants. Ms. Sangeeta Mishra and Shri C.R. Sahu, counsel for the Smt. Madhunisha Singh, Panel Lawyer for the State. JUDGMENT (Delivered on 1-1 1-201 1) N Per T.P. Sharma J. Challenge in this appeal is to the judgment or' conviction and order -2008 passed by learned Additional of sentence dated 14-3 h essions Judge, Mungeli in Sion rial No.1 of 2006, wereby and whereunder learned dditional Sessns Je, after h A io udg hol lints o c ci ding the appea guilty for commission f ulpabie homide amounting t murder qt antosh Bai i shng comon intention o Si , n ari m by pouring erosene'oii over her and set heri, convicted the k abaze aeint uneection 32 r h Section 34 f the IPC and sntence each of hem to nder lifiprioen nd pay ed t ugo eémsnmt a to fine of Rs.0/-, n deault of aymen of i her undergo Si 100 i f pt fne tofurt for si months. x onviction of t iiants is impugned on rou that without 'any iota of evidence, the court beiow as conviced ad sentenced h t n the apilants as aforementioned and erby cmmitte ilegality. pe the od l As per case- of prosecution, Santoshi Bai, o as sister—-law of wh w in appellant No.1 ilip and apllant N.2 Jhamin Bai and dauhter- D pe o g in-law of appellant No.3 Bhukhiya Bai, as residng with them., w i The appelants used to quarrel with her. n fateful day of 17-1 1- l O 205 between at 10.30 a.m, to 11.0 a., appellant No.1 Dili 0 0 m p poured kerOsene oil over Santoshi Bai (since eceased), appellnt d a No.2 Jharhi Bai set her ablaze. and thereater allan No.3 n f ppet Bhukhiya Bai thrown cthes/blanket over her. case soud lo Deed hte for help upon which villagers came tere and too.e to h khr community health centre, Patharia where Doctor D.R. Singroul‘ (PW/12) examined the injured Santoshi Bai to whom she informed that she was burnt by pouring kerosene oil over her and setting her ablaze. Dr. D.R. SingrOul informed the concerned Police Station Patharia about the incident on the basis of which Dehati Nalisi was S esss T 27 poias drs 0 ead wit o C he appe the gnd recorded vide EXP/20 by L. Tigga (PW/1) Subnspector. On 5 -I examnaion he fo superficial to deep burn injuries over face, it und; neck, hea ‘sku, righ-and eft upper lbs, chest, abdomen, d, il t l im perinea regin, right wer limbs, eri posterior, lateral and i o lo antor, aspect of he bodof 10% bur ijuries. he was medial t y‘ 0 n n S conscious, wll Oriented to lace and time, peech as normal; e p s w Her general condition as not satisfactory. She s admitted for w wa further treatment where se mae dying delaration which was h d c reoe by PW/5 Shri S.K. Gautam, dditional ahsildar vide crdd A T Ex.P/8. Ding course of treatmet e s shifted to CIMS ur n sh wa Bilaspur, where he died and intimation thereof was sent‘to s concerned Pic tation vide Ex.P/M. Merg was recorded vide ole S Ex.P/13 on 10—12-2005. First Infortion Report ws lodged vide ma a EXP/21. After summoning witnesss vide Ex./1, inquest over the e P dad body o the deceased was prepared vide Ex.4. Burnt e f P/ articles found from the spo ncluding pieces of angls and pieces t i be o clothes were recovered vid EXP/6, spot map as reared vide a f e w pp Ex./7 P and dead body of deceased was sent fo r autopsy to CIMS, Bilaspur, vide .P/18 where Dctor H. Mandle (PW/1) conducted Ex o 7 autopsy vide Ex.P/26 and pined ta cause of death ws cardio o ht a failur as a reult of secdary infection t septicemic shock due to e s on o bun injuries. r temnts of witnesses ere recorded under eion 161 of the Sate w Sct Code of Criinal Procedur (for short, “te Co”) 'After m e h de. completion of investigation, harge sheet was filed against the appellants in the Court of Juicial Magistate FirsClass, Mungeli, d r t c wJw @ who in turn committed the case to the Court of Ses$ions Judge, Bilaspur. Learned Additional Sessions Judge. received the case on transfer for trial. In order to prove the guilt of the appellants the prosecution examined as many as seventeen witnesses. Statements of the accused/persons were recorded under Section 313 of the Code of Criminal Procedure, in which they denied the circumstances appearing against them, innocence andvfalse implication in crime in question is claimed. Appellant No. 1 Dilip and appellant No.2 Jhamin Bai have taken specihc defence that they were residing separately from deceased. Defence has examined Bodhar Narayan (DW/1) and Sukhcharan (DW/2) who have deposed that they were informed by one Bimla Rajkumar that Santoshl Bai was burnt then they reached the spot where Santoshi Bai was shouting for help, then they took her to hospital. After affording opportunity of hearing to the parties, learned Additional Sessions Judge convicted and sentenced the appellants '. as aforesaid mentioned. We have heard learned counsel for the parties and perused the record of the trial court as also the impugned judgment. Ms. Sangeeta Mishra, learned counsel for the appellants vehemently argued that conviction is substantially based on dying declaration (EXP/8) and Dehati Nalisi (EXP/20) which do not inspire confidence and trustworthy. Deceased has falsely lodged Dehati Nalisi (EXP/20) and has falsely implicated the appellants in her statement vide Ex.P/8 and on accountof previous quarrel she 9 .,-._...,.;-\/ ‘ has falsely implicated the appellants. As per’case of prosecution, this is a case of 100% burn injuries, thus, it is not possible for her ~or any person who had recorded her statement to put/obtain thumb impression on any of the documents. As per evidence of witnesses, she herself burnt and committed suicide and has falsely implicated the appellants. In support of .her arguments, learned counsel for the appellants has placed reliance in the matter of --Keshav Gangaram Navge and another vs. State of Maharashtra1, in which the Supreme Court has held that dying declaration (is not trustworthy when it does not record what the deceased himself wanted to say, but records what he says on the suggestion of the other persons. Learned counsel has further placed reliance in the matter of State of Punjab vs. Gian Kaur and another} in which Supreme Court has affirmed the finding of High Court regarding impossibility for obtaining thumb impression ‘in case of 100% burn injuries. Further, learned counsel has placed reliance in the matter of Mohd. Iqbal alias Baratu vs. State of Chhattisgarh3, in which this court has held that in case of J K contradictory statement especially relating to bandage and obtaining thumb impression, this Court has acquitted the appellant. , 9. On the other hand, Smt. Madhunisha Singh, learned Panel Lawyer for the State opposed the appeal and submits that PW/5 Shri S.K. Gautam, Executive Magistrate has recorded dying declaration vide Ex.P/8. Deceased has also lodged Dehati Nalisi vide Ex.P/20 which has been proved by PW/15 Shri L. Tigga, Sub-inspector. 11971(1)SCC 513 , W32008 2 1998 Crl Crl L L J J 2061 1835 Learned counsel further submits that there rs consrstency In dying declaration (Ex P/8) and Dehatr Nalrsr (EX P/20) Both the Witnesses have clearly'deposed that they have obtained her thumb impression, burn injuries were not 100% but it was approximately 100%. At the time of recording dying declaration (Ex P/8) and Dehati NaIISI (Ex P/20) her thumbs were not closed by bandage The evudence adduced on behalf of the prosecution is suffICient for conVIction of the appellants, After appreCiating the evidence available on record, learned Additional Sessions Judge has rightly convicted and sentenced the appellants as aforementioned.‘ ln order to appreciate the arguments advanced by learned counsel for the parties, we have examined the evidence adduced on behalf of the prosecution. ln the present case, death as a result of burn injuries has not been substantially disputed on behalf of the appellants. On the other hand, it is also established by the evidence of Doctor D.R. Singroul (PW/12), injury report (Ex.P/15-A), Doctor H. Mandle ' (PW/17) and autopsy report (EXP/26) that the death of deceased Santoshi Bai was due to, burntinjuries and its consequential complication. As regards complicity of the appellants in the crime in question, conviction is substantially based on the evidence of PW/5 S.K, Gautam, dying declaration (Ex.P/8), dehati nalisi (EXP/20), PW/15 L. Tigga, Sub-inspector, oral dying declarations made before PW/3 Kunjram,‘ father of deceased, PW/8 Shiek Kaman Ulla, PW/7 Kaliram. 13. As per evidence of PW/5 S.K. Gautam, Additional Tahasi!dar, he has recorded dying declaration of deceased Santoshi Bai vide Ex.P/8. Defence has cross-examined this witness at length, but ‘ has not been able to elicit anything in his cross—examination .relating to inability for recording dying declaration. Inter alia, as per para 12 of his cross-examination, defence has suggested that he has obtained thumb impression of Santoshi Bai of the part which ‘ was not burnt, therefore; he has taken partial thumb impression of Santoshi Bai. Nothing has been suggested to this witness that Santoshi Bai has not stated against the appellants in dying declaration (EXP/8), likewise nothing has been mentioned by PW/15 L. Tigga who has recorded Dehati Nalisi (EXP/20). Defence has also suggested him in para 11 that he has recorded the statement of Santoshi Bai. Though there are some contradictions in the evidence of PW/3 Kunjram, PW/7 Kaliram and PW/8 Shiek Kaman Ulla relating to dying declaration, the aforesaid factum does not find place in Ex.D/1 and D/2 i.e., the statements of Kaliram and Kunjram relating to dying declaration, but it reveals in Ex.D/1 and D/2 that she had briefly stated that she died as a result of pouring kerosene oil and setting her ablaze. Dying declaration is also one kind of evidence and once it is proved to be true, the same may be sufficient for conviction. The principle of dying declaration is based on legal maxim “nemo moriturus proesumitur mentin"—a man will not meet his maker with a lie in his mouth. 15. Lord Chief Justice Baron Eyre {See. R. v. Woodcock, (1789) 1 Lea 502} expressed his view relatin'g to dying declaration as follows: - ”...That such declarations are made L in extremity, when the party is at the point of death, 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 the 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...” 16. While dealing with the question of dying declaration, the Supreme Court in the matter of State of U.P. v. Ram Sagar Yadav4 has " held that ifsthe court is satisned that the dying declaration is true and voluntary it can base conviction on it, without corroboration. 17. ln the present case the evidence of PW/3 Kunjram, PW/7 Kaliram and PW/8 Shiek Kaman Ulla are sufficient to prove the fact that deceased Santoshi Bai has made dying declaration before them and has not given the statement at the instance of any other person. ln the matter of Keshav Gangaram Navge and another (supra), dying declaration recorded on the basis of suggestion of other person is not trustworthy. in the present case, deceased has not made _her dying declaration on the basis of suggestion of other person. Thus, the facts of that case are distinct from the facts of the present case. In the matter of Mohd. Iqbal alias Baratu (supra), there is no dispute relating to bandage over thumb impression. This is not a case of 100% burn injuries, but approximately it was 100% burn injuries. ln these circumstances, without further material, thumb impression found over EX.P/8 and P/20 cannot be said to be suspicious. In the matter ofState of Punjab (supra), in E \ ‘AIR 198.5 SC 416 case of 100% burn injuries, complete thumb impression inciuding three ridges and curves could not be possible. in the present case, as per evidence of PW/5 S.K. Gautam, Additionai Tahsildar, he has obtained thumb impression on Ex.P/8 from unburnt part of thumb which reveals that thumb impression was partially burnt but has not , been completely burnt. Defence has also examined DW/1 Bodhar‘ Narayan and DW/2 Sukhcharan but they have not deposed j anything against prosecution or in favour of defence. Evidence of PW/5 S.K. Gautam, PW/3 Kunjram, PW/7 Kaliram and PW/8 Shiek ' Kaman Ulla before whom she made a dying declaration, are safe to rely for conviction of the appellants. The evidence of these witnesses is well corroborated and dying declaration Ex.P/8 and dehati nalisi (EXP/20) of deceased clearly reveal that appellant No.1 Dilip poured kerosene oil over Santoshi Bai and appellant No.2 Jhamin Bai set her ablaze, thereafter appellant No.3 Bhukhiya Bai has thrown cloth/blanket over her. Pouring kerosene oil and setting her ablaze are sufficient to prove the fact that appellant No.1 Dilip and appellant No.2 Jhamin Bai have caused homicidal death of deceased Santoshi Bai with intent to cause her death but throWing blanket/cloth over Santoshi Bai by itself is not sufficient to establish that she has thrown cloth/blanket over deceased with intent to kill her, inter alia, that may be with intent to save her. The evidence adduced on behalf of the prosecution is sufficient for conviction of appellant No.1 Dilip and appellant No.2 Jhamin Bai for commission of culpable homicide amounting to murder of Santoshi r\r 18. @ Bai, in sharing common‘intention, under Section 302 read wit‘h Section 34 of the IPC;. The aforesaid evidence is not sufficient for conviction of the appellant No.3 Bhukhiya Bai for commission of culpable homicide agmounting to murder of-Santoshi Bai in sharing common intention. While convicting and sentencing the appellant No.1 Dilip and appellantNoZ Jhamin Bai, the court below has not committed any illegality but while convicting and sentencing the appellant No.3 Bhukhiya Bai under Section 302 read with Section‘ 34 of the IPC, count below has not considered the aforesaid 'c‘i‘rcumstances and dying declaration in its true perspective and thereby committed illegality For the foregoing reasons, the appeal is partly allowed. The conviction and sentence of appellant No.3 Bhukhiya Bai are hereby set aside and the conwiction and sentence of appellant No. 1 Dilip and appellant No.2 Jhamin Bai are hereby maintained, lt is stated by both theparties that appellant No.3. Bhukhiya Bai is on bail and her bail bonds shall stand discharged. as ‘1 he V'T.P.SHARMA i 3 ~--—\. l: i Sd/- Judge . r} ‘ i i i