HIGH COURT OF CHHATTISGARH BILASPUR Criminal Appeal No.1 11 of 2005 APPELLANT: Prem Kumar Bhosle alias Raju, S/o Shri (In Jail) . Sampat Rao, Caste Marathi, aged about 34 Magistrate, P.S. Pathariya, Distt. Bilaspur (C.G.) {Criminai appeal under Sectiori 374 of the Code of Criminal Procedure, 1973} Present: Mr. R.M. Solapurkar, counsel for the appeiiant. Mr. J.A. Lohani, Panel Lawyer for the State/respondent. Division Bench: - Hon’ble Mr. T.P. Sharma and Hon’ble Mr. R.N. Chandrakar, JJ ORAL ‘EUDGMENT (847-201 1) T.P. Sharma, J: - 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 29-1-2005 passed by the 2nd Additional Sessions Judge (FTC), Mungeli in Sessions Trial No.389/2003, whereby & whereunder learned Additional Sessions Judge after holding the appellant guilty for commission of culpable homicide amounting to murder of his wife Jharna Bai, convicted the appellant under Section 302 of the IPC and sentenced him to undergo imprisonment for life & pay hne of Rs.1 ,000/—, in default V of payment of tine to further undergo RI for six months. 2. Convrctlon is Impugned on the ground that Without any Iota of eVIdence the trial Court has conv1cted & sentenced the appellant and thereby committed Illegality 3. As per case of the prosecution, on the fateful day of 5-4-2003 between 10 a.m. and 11 a.m. the appellant was present in his house with his wife l Jharna Bai (since deceased), the appellant was under intoxication, he has consumed liquor and poured kerosene oil over the body of his wife Jharna Bai while she was keeping her child an‘d set her ablaze. She years, R/o Sitdaha, P.S. Pathariya, Distt. Bilaspur (C.G.) Versus RESPONDENT: State of Chhattisgarh, Through District @ 2 burnt up to 95% and her child was aiso bUrnt. She came out from the house and shouted for help then the villagers took her to the hospitaL She was examined by Dr. Mrs. ’Madhulika Sen (DW—1) vide EXP-19A and 90 to 95% burn injuries of first to third degree were found on her person. She was admitted in the burn unit. Her injured son Shrijan was also examined by Dr. Manish Shrivastava (PW-21) vide Ex.P—20A and superficial burns over hand & leg of first degree were found on his person. Dr. Manish Shrivastava (PW-21) has intimated to the police vide Ex.P-16. Dr. Mrs. Madhulika Sen (DW—1) has also intimated to the police vide Ex.P—15. Both the doctors have examined the injured persons in different units/wards. FIR was registered vide Ex.P—18 for the offence punishable under Section 307 of the IPC. During the course of treatment, Jharna Bai succumbed to the burn injuries sustained by her. Initially merg was recorded vide Ex.P—8 and finally. it was recorded vide Ex.P-2. Numbered FIR was registered vide Ex.P-1.> On 6—4-2003 at about 1.15 p.m. Executive Magistrate Prakash Chand Kori (PW-4) recorded dying declaration of Jharna Bai vide Ex.P—7 in which she has stated that her husband has poured kerosene oil over her body and set her ablaze. Jerrycan containing two litres of kerosene oil, burnt match stick, match box, burnt piece of cloth and soil containing smell of kerosene were seized from the spot vide Ex.P—24. After summoning the witnesses vide Ex.P-11, inquest over the dead body of the deceased was prepared vide Ex.P-12. Dead body was sent for autopsy to Dr. B.R. Ambedkar Hospital, Raipur vide Ex.P—Q. Dr. V.K. Dhruv (PW—18) & Dr. (Smt.) Nidhi Gupta (PW-6) conducted autopsy vide Ex.P—9A and found ante mortem burn injuries over the body of the deceased and that the death was due to cardio respiratory failure as a result of burn injuries. . Statements of the witnesseswere recorded under Section 161 of the CrPC. After completion of investigation, charge sheet was filed before the Court of Judicial Magistrate First Class, Mungeli who committed the case to the Court of Sessions, Bilaspur from where learned Additional Sessions Judge received the case on transfer for trial. . ln order to prove the guilt of the accused/appellant, the prosecution has examined as many as twenty—one witnesses. The accused/appellant was examined under Section 313 of the CrPC in which he denied the circumstances appearing against him, pleaded innocence and false implication in the crime inquestion. By examining Dr. Mrs. Madhulika Z? *S‘en (’DW—1’)‘, Dr. D.P. Dwivedi (DW-2) & Hetram Verma (DW—3), the accused/appellant has taken defence that Jharna Bai (since deceased) had sustained burn injuries as a result of accident while she was preparing tea and that he has not caused any burn injury resulting in death of the deceased. . After affording opportunity of hearing to the parties, learned Additional Sessions Judge, convicted and sentenced the appellant as aforementioned. . We have heard learned counsel for the parties, perused the judgment impugned and record of the trial Court. . Learned counsel for the appellant vehemently argued that in the present case, the prosecution has adduced two sets of dying declarations one relating to pouring of kerosene oil over the body of the deceased and setting her ablaze, and the second setofrdying declaration is relating to the burn injuries caused by accident at the time of preparation of tea. ln case of two inconsistent dying declarations, the appellant is entitled for acquittal. Learned counsel further argued that even as per case of the prosecution, the incident took place all of a sudden without any pre— meditation and there was no intention to cause death. Therefore, if the drst set of dying declaration which is against the appellant is considered to be true, everi then the act of the appellant does not travel beyond the scope of Section 304 Part—l of the IPC. Learned counsel placed reliance in the matter of Ganesh Ram v. State of Madhya Pradesh, 2010 (2) M.P.H.T. 350 (DB), in which the High*Court of Madhya Pradesh has held that in. case of 5O to 55 per cent burn injuries caused by the appellant on sudden quarrel and all of a sudden, the appellant can be convicted for the offence punishable under Section 304 Part-l of the IPC and not under Section 302. . On the other hand, learned State counsel opposes the appeal and submits that the factum of dying declaration relating to burn injuries by accident has not been supported by substantive evidence. The defence witnesses who have deposed relating to the aforesaid fact have been declared hostile. The prosecution has examined the Executive Magistrate who has recorded dying declaration Ex.P-7 which clearly reveals that the appellant has poured kerosene oil over the body of the deceased and set her ablaze and as a result of such injuries the deceased died which shows that the appellant has caused homicidal of the deceased with intent to cause her death. 10.ln order to appreciate the arguments advanced on behalf of the parties, we haveeexamined the evidence adduced on behalf of the parties. 11.ln the present case, deatheef deceased Jharna Bai as a result of 95% burn injuries has not been substantially disputed on behalf of the appellant, even othen/vise, evidence of Dr. Mrs. Madhulika Sen (DW-1), Dr. D.P. Dwivedi (DW—2), Hetram Verma (DW-3), Dr. (Smt.) Nidhi Gupta (PW-6), Dr. V.K. Dhruv (PW-18), autopsy report Ex.P—9A and injury report Ex.P-1 9A are sufficient‘to establish the fact that the deceased died as a result of burn injuries sustained by her. 12.As regards complicity of the appellant in the crime in question and homicidal death of deceased Jharna Bai, conviction of the appellant is substantially based on the dying declaration of the deceased. As per case ‘of the prosecution, on 5-4-2003 between 1O a.m. and 11 a.m. Jharna Bai along with her child sustained burn injuries inside her house whereas, the appellant who is her husband was also present in the house, she came out from the house and shouted for help, and with the t help of water the persons gathered extinguished the fire, thereafter, they shifted both the injured persons to hospital for treatment. As per evidence of Dr. Mrs. Madhulika Sen (DW-1) who has examined the injured/deceased for the first time vide Ex.P-1 9A, at the time of preparing tea she sustained burn injuries as a result of accident. However, the aforesaid fact does not tind’support from her written report Ex.P-1 9A which reveals that at time of making tea, kerosene oil container fell down and thereby the injured sustained burn injuries, which is contrary to the factum of preparation of tea and accident. Shekhar Pawar (PW-9), Holkar Rao (PW-13) & Kalpana Bhosle (PW-14) have also deposed same thing that the deceased came out from the house and shouted that as a result of accident while preparing tea she sustained burn injuries, but there is contradiction and cOmmission in their statements recorded under Section 1’61 of the CrPC and it also does not nnd support from Ex.P—19A. 13.As regards the second set of dying declaration, as per evidence of Executive Magistrate Prakash Chand Kori (PW-4), he has recorded dying declaration of the deceased vide Ex.P-7 in which she has categorically stated that her husband who was under intoxication has poured kerosene oil upon her body and set her ablaze, by pouring water witnesses Kalpana & Jaya Bhosle have extinguished the tire. She has further stated that the appellant is in the habit of quarrelllng with her and was quarrelling with her since last 2-3 days after consuming liquor. Villagers were standing in front of the house. She has also stated that her one year aged kid has also sustainedburn injuries. Defence has cross-examined Prakash Chand Kori (PW-4) at length in which he has specifically deposed that after complying the procedure prescribed and obtaining certificate from the doctor, he has recorded the statement of the deceased in question & ’answer form. His evidence coupled with lodging of FIR for the offence punishable under Section 302 of the IPC, is well corroborated by evidence ofDhananjayrao Shinde (PW-7) & Ajay Shinde (PW-8) before whom he deceased has also made dying declaration that the appellant has poured kesene oil over her and set her ablaze. 14.Dying declaration EX-7 recorded by Executive Magistrate Prakash Chand Kor (PW-4) well corroborated by evidence of Dhananjayrao inde (PW-7) & Aj hin (PW-8) inspires confidnce, it is trutworthy and sumient to prove the fact that the deceased has made dying declaration in which she has stated that the applant has poured kerosene oil over her body and set her ablaze. This is sufficient to establish the fact that the appllant ha caused‘homicidal death of eceased Jharna Bi. d a 15.As regards intenon of the appellant fo causing death of the deceased, as held by the High Court of Madhya Pradesh Ganesh Ram’s case (supra), on suden arrel and without pr-meditation, pouring kerosene oil and settin her ablazeveal that at the time of pouring such kerosene oil and setting her ablaze, the accused might- have knowldge hat by his act death may e cause, but the accused has not caused t b d homicidal eath of the deceased with intent t cause the death. The accused has poured kerosene oil without premeditation and on sudden quarrel. Conviction of the appellant under Section 302 of the. IPC was x altered to Section 304 Part-l of the IPC. 16.ln the present case, the prosecution has adduced dying declaration as substantive piece of evidence. Dying declaration is also a kind of ‘\ I / t ro P i Sh ay Sde e s c el e s ti r in d qu e g esr e d o \ evidence. The principle of dying declaration is based on iegal maxim Hnemo moriturus proesumitur mentin"—a man will not meet his maker with a lie in his mouth. 17.Lord Chief Justice 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 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...” 18.While dealing with the question of dying declaration, the Apex Court in the matter of State of U.P. v. Ram Sagar Yadav (AIR 1985 SC 416) has held that if the cout is satisfied that h dying declartion is true and voluntary it an bse conviction on it, without corroboration. 19.Ex.P-7 dying declaration of the deceased ipires confidence and is trustworthy. As per EXP-7, especially while answering question No.3, deceased/injured Jharna Bai has answered in the following manner: - mqmwwaamgamwaawnma ammtéawwmtaamsmwa§r 3W WwmWmmsn‘twaWwwm mwmmwer 20.his answer/sbstantive act cmitted by the appellan reveals that the appellant has poured kerosene oil over the body of the deceased & his/ h son when he was under intoxition (m that? :ra 1t at) hich shows tht the appellant has committed the aforesaid act under intoxication. Howeve, he was having knowledge that by his act, the deceased may d c c 3 art-l of the IC. 21.After appreciating the evidence available on record, learned Additional Sessions Judge, convicted and sentenced the appellant in the aforesaid manner. At the time of convicting the appellant, the trial Court has not i considered the circumstances in which the incident took place, especially the dying declaration Ex.P—7 and answer of the deceased to question No.3 put to her, and thereby committed illegality. er ca w a r ie, but he has not ommitted homicidal death with intent to ause death of the deceased. His act squarely falls within the ambit of Section 04 P P r te a c a ns w W T u om t 22. For the foregoing reasons, the appeal is partly allowed. Conviction of the appellant under Section 302 of the IPC is altered to Section 304 Part-l of the IPC. Considering the act of brutality viz., the appellant has poured kerosene oil over the body of his wife Jharna Bai (since deceased) & child and set them ablaze, the appellant is hereby sentenced to undergo Rl for ten years & pay fine of Rs.1,000/-, in default of payment of fine to funher undergo Rl for six months. The appellant is in custody since 7-8- 2003. He‘is entitled for set off for. the period of detention already undergone by him. (”W a sw— R.N. Chandrakar « r ‘ .‘iudge «9/, So‘