@ HIGH COURT OF CHHATTISGARH, BILASPUR Criminal Appeal No.864 of 2001 A Shri Viuuesh Vajpai, counsel for the appellant. Shri Satiéh Gupta, Deputy Govt. Advocahe, for the State DB: Hon’ble shri Justice L.C. Bhadoo 2 & Hon’ble Shri Jugtice Sunil Kumar Sinha, J, J. ORAL JUDGMENT (25.10.2007) The following judgment of the Court was passed by L.C. Bhadoo, J, (11 This appeal is directed against the judgment of conviction and Older of sentence dated 27.7.2001 passed by III Add‘l. Sessions Judge, Jagdalpur, in Sessions Tn'al No.162/2001 whereby and \‘iL Whereunder the learned Addl. Sessions Judge, after holding the accused appellant guilty for the commission of the oii‘ence punishable u/s 302 l.P.C., for committing murder of his wife namely Smt. Soni Bai by setting her on lire, sentenced him to undergo life imprisonment but no hne was impOsed ongaccount of poor financial condition. D (2) The case of the prosecuu'on in bn'ef is that at about 8 — 9 p.m. in the night of 18. 12.2000 the accused Peddi Bichcham after pouring kerosene oil on the body of Smt Soni, set her on hie with the help of buming wood. She was immediately taken to the Jagargunda hospiml. The matter was reported by Munnu Singh and Surya ,Rao in the 'Police outpost Chitalnar which was \ \ APPELLANT Peddi Bichcham, s/o Somaru, aged about 42 years, r/o Chjntalnar, Maharapara, P.S.‘ Jagargunda, Distt. Dantcwada (C.G) Versus RESPONDENT State of Chhatiisgarh, through the Station House Ofuc'er, Police Stau'on Jagargunda. ‘ $ ‘ Appearance: 2 Criminal Appeal No.86412001 @ reg'stered in the Rosnamcha at Serial No.64 at about 11 p.111. in the night, on the basis of which, the First Infomation Report Ex.P. 12 was registered. The report given by Erli Penta (P.W.8) was reconied in the Rosnamcha Sanha Ex.P.13 & P~14. After registration of the Crime, the investigating o$cer left for the scene of occmrence. He seized the soil mixed with Kemsene oil and plain soil mm the place of occunence. The burnt piece of wood by which Smt.Soni was set on me, one Plastic Je‘ri Cane containing _ 100 m1. kerosene, one old Sani one petticoat, one brazier and one blouse Were seized under Ex.P. 1. The burn injuries of victim Soni weie examined in the Primaly Health Centle Jagargunda by DnKama‘l Singh Sethe (P.W.2) and he prepared injury report Ex.P.3. Dr.Kamal Singh Sethe recorded the dying declaration of Smt.‘Soni Ex.P:7. The site plan EX.P.8 was prepared by the Halka Patwan‘. Merg‘intimau'on Ex.P.11 was sent to the Police Station Jagargunda. The 1.0., prepared the inquest'Ex.P.15 on the body of deceased. On account of burn injun‘es Smt.Soni died on 31.1.2001 and on 1.2.2001 the postmortem was conducted hy Dr.Kamal Singh Sethe. He opined that the death of was due to. septic shock and severe malnutrition as a result of dieinjmy which was antemortem in natme. He prepared postmortem‘report Ex.P.4. After completion of investigation, the charge sheet was filed in the Court of Judicial Magistrate, First Class, Sukma, who in turn committed the case to the Sessions Judge, Jagdalpur, horn where the Ill Addl. Sessions Judge, Jagdalpur, received the case on transfer for trial. (3) In order to establish the charge against the accused, the prosecution examined 9 witnesses. The statement of the accused was recorded u/s 313 Cr.P.C. in which he denied the material appearing against him and stated that he is innocent and he has been falsely implicated in the crime in question. (4) The learned Addl. Sessions Judge after hearing counsel for the respective parties convicted thém‘sentenced the accused as aforementioned. \ \ 3 (5) We have heani Shn' Vimlesh Vajpai, counsel for the appenant and Shri Sau‘sh Gupta, Deputy Govt. Advocate, for the State. (6) Learned counsel for the appellant has not disputed the homicidal death of Smt Soni More over, P.W.2 Dr. Kamal Singh Sethe has stated that he was workmg as Ass1smnt Surgeon m Pnmaxy Health Center, Jagargunda, on 11 12 2000 Smt Som was brought to the hospltal and he exammed her mjunes, there were two types of injuries on her body that is superhcial and deep burn“ mjunes on the chest hands, mom of the head face and the abdomen The bum mjunes were extendmg mm 40 45%. His report 1s EX.P.3. He has further stated that on 01.122001, he eonducted the‘postmortem on the body of deceased. The body was stinking Thereuwere burn injuries on the face, abdomen, both the ttughs 85 shoulders and hands There were also mjunes on other parts of the body also There were marks of burn mmnes hehmd a the hand. There were mjunes on the neck and at Umbilicus regon. He has further stated that the cause of death was septic shock and malnutrition due to bum injun‘es. His xepon is Ex;P.4. Therefore, in View of the above medical evidence and postmortcm‘ report Ex.P.4, it is established that the death of Mrs.Soni was homicidal in nature. As far as complicity of the accused in c ' e in question is concerned, in this case, all the eye witnesses have tmned hostile. The conviction rests on the dying declaration Ex.P.7 recorded by Dr.Kamlesh Singh Sethe (P.W.2). (7) Learned counsel for the accused appellant argued that in the dying declaration Ex P 7 the hme 1s not mentioned He further argued that the Victim surv1ved for about one month and 20 days and even then her dying declaration was not recorded befme any Magistrate. He also submitted that it has been mentioned that the, dying declaration was recorded. in presence of two Witnesses an those witnesses have not been examined, therefore, on such a dying declaration, conviction cannot he based. It is settled law that it is not necessary that the dying decimation is to be recorded only by the Magiseatc. The dying declaration can be recorded ‘\ even by a Police Omcer or a' Doctor or any responsible person. .\ Criminal Apmal No.864/2001 (3k © d 4 Criminal Appeal No.86d/2001 There is no mquimment of law that the dying declaration is mcorded by the Magistrate only. It is true that the witnesses before whom the dying declaration was recorded have not been axamined and even time is not menu'oned. The non—menu'oning of time is not important as the witnesses have not been examined, therefore, the Court is required to scrutinize the evidence of the Dr. Kamal Singh Sethe (P.W.2) with great care and circumspection in order to reach the conclueion that whether the deceased was in a ht state of mind to give statement, she was able to identify the accused, the dying declaration was voluntary and true and it was ngtfthe out come of tutoring or was subjected to innuence by anybody. P.W.2 Dr.Kamal Singh Sethe has stated that on 11.12.2000 that is from the next day of the incident, he recoxded the dying decimation of Smt.Som', wife of Peddi Bichcham, aged about 32 years and after recording the dying declaration, her {thumb impression was obtained. She was able to talk and as per the disclosure made by Smt.Som', he recorded the dying declaration Ex.P.7. In the cross examination of this Witness, he has stated that when the victim was brought to the hospital, she was burnt to the extent of 40-45%, she was conscious and was able to speak. She remained in hospital hom 12.12.2000 to 12.1.2001 and the Wounds stated healing. The low injuries which were superEcial were healed but the wounds of deep burns are still there. The family members were advised to take her to somewhere else for treatment, but hnancialiy they were not in a position to take her to somewhere, therefore, she was referred to the District Hospital. 1n the cross examination of this witness, the defence has not been able to bring on record any circumstance by which it can be reached to the conclusion that the dying declaration was not recorded by him’ or Smt.Son1’ was not in ht state of mind to give statement or she was subjected to tutoring or influence, therefore, there is no reason for this Court to disbelieve the evidence of this Doctor and even the trial Court has also reposed confidence on the evidence ofDoctor regarding recording of dying declaration. Without any cogent and plausible reason, the iinding recorded by the trial Court as also the evidence given by the Doctor Kamal Singh Sethe cannot be rejected or discarded. ex (i V 3 Criminal Appeal No.86412001 @ (8) In the matter of Mange Ram and another -’vs- The Stafe i Delhi Administration, 1998 Cri.L.J. 2269 the Apex Court held tihat the dying declaration record€d by the 1.0., and Doctor if found reliable and consistent anti as per the medical evidence the deceased was 1n full senses and able to speak clearly when brought to the hospltal then the evxdence of w1tness that he was under the miluence of hquor could not be beheved. (9) A perusal of dying declaration Ex.P.7 reveals that Mrs,Som' has stated that her husbalfd asked her that she is marrying another pexson, on which she leplied that she is mother of 4 cghdmn, Why she should marry to another person, her husband brought the kerosene oil, poured on her and picked up a bmnt wood when: she alongwith her husband were sitting and set her on tire. She further stated that this incident happened at 8 pm. Th above statement of Mrs.Som‘ stands corroborated by the injury report EX.P.3, she was immediately taken to the hospital Where Dr.Kama14 Singh Sethe himself examined and treated her. Therefore, there is no reason for this Court to disbelieve the said dying declaration recorded by P.W.2 Dr.Kama1 Singh Sethe and it is settled law that if the dying declaration is voluntary, true and inspires commences-of the Court, conviction can be based’on the same without any corroboration. Therefore, the trial Court has rightly held that the accused was the author of cn‘me in question. (10) Learned counsel for the accused appellant further argued that in this case, the incident happened on 10.12.2000 whereas Mrs.Soni died on 31st of Jan. 2001 ie., atter about one month and 22 days and as per the evidence of the Doctor, she remained in Jungarguda Hospital about one month Where the superhcial injuries were already healed, deep burn injuries were still under process of healing and the family members of the deceasediwere advised to take her somewhere else for treatment but they were not in a position, therefore, proper treatment was not provided to the victim and as per the evidence of Ddétor, if proper treatment was given to deceased she could have survived. Therefore, the intention of the accused, in the facts and circumstances of this case, for committing murder of his wife is missing. As such the e 6 Criminal Appeal No.864/2001 o§ence against the accused does not tavel beyond secn'cm 304 ‘ Part-II of I.P.C. '(11) On the other hand, Mr. Sau’sh Gupta, Dy.Govt. Advocate, L supporttd the judgment of the trial Court. :(12) The argument of Mr.Vimlesh Vajpai, deserves men't As per the doctor’skhevidcnce, Mrs.Soni sustained 40—45% of bum injun‘es, >her superncial burn injuries were aheady healed, deep wounds iwere in healing process and‘.the family members were advised to take her to other hospital for neatment but on account of their p001” unancial condition, them were not able o ake somewhere else. The Doctor has futher stated that if proper treatment w iv to Mrs..Soni, them wexe chances of h survival. It is dmitted posiion tht she died after one month 85 22 days. Moreover, there were no previous dih‘erences betwen the hsband and wife. Even the Rosnamcha "report Ex.P.l3 was ive y Erli Penta just after the incident at about 1 1 p.111. in the sad night. A perusal of the s shows that at about 8-9 p.111. in the ight the deceased and the accused both were sifti in h‘ont of hie, they were warmin their bodies and at that time there was some altercation between the two which enraged the accused a in a heat of passion without prepalan'on and pmmeditation, all of a sudden, the accused ought Kemseneoil, poured n her, icked a burning wood and set her on hie. In these circstancs, it cannot be said that the accused had set her o h‘re with an intention to cause death but the knowledge can definitely ut ing be attribed look to the facts and circumstances of the case, the manner in which she was set on iire and eve the victi MrsSom' could have survived had there been a roper treatment provided to her. herefo, the cnviction and sentence imposed on the accused us 302 I.P.C. cannot be suained an the oii'ence agai him'does not travel beyond section 304—Part II of I.P.C. (13) In the result, the appeal partly siicceeds. The conviction and sentence imposed upon the appellant 11/ s 302 I.P.C. are set aside. Instead thereof, he is convicted u/s 804 Part-II, I.P‘C. and sentenced to undergo 7 years RJ. It is stated that the accused is t t her r as ge? er a t a i e u i gn b i ame n ng g , nd br o p ume n n m p Tre o / st d nst 7 Criminal Appeal No.8“l2001 in detenu'on since 24.1.2001 till today. The accused shall be entitled for set 0 for the period of detention against the sentence /Ra.o/ $1« imposed upon him. Sdl- Sdl- ,: L.C.BHAD00 SUNIL KUMAR SINHA Judge Judge