Chattisgarh High Court
Raj Kumar vs State Of Chhattisgarh on 9 March, 2016
Author: P. Diwaker
Bench: Pritinker Diwaker, Inder Singh Uboweja
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No. 85 of 2011
1. Raj Kumar, S/o Baharta Sahu, aged about 30 years, R/o village Pathara,
Police Station Navagarh, District Janjgir-Champa (CG)
---- Appellant
(In Jail)
Versus
1. State Of Chhattisgarh, through the Police Station Navagarh, District
Janjgir-Champa (CG)
---- Respondent
For Appellant: Shri P.K. Verma, Sr. Advocate assisted by Shri Sumit Verma, Advocate.
For Respondent: Shri Rahul Tamaskar, Panel Lawyer.
Hon'ble Shri Justice Pritinker Diwaker Hon'ble Shri Justice Inder Singh Uboweja Judgement P. Diwaker, J 09/03/2016
1. This appeal arises out of the judgment of conviction and order of sentence dated 27.8.2010 passed by the Sessions Judge, Janjgir- Champa in S.T. No.218/09 convicting the accused/appellant under Section 302 of the Indian Penal Code (for short 'the IPC') and sentencing him to undergo imprisonment for life & fine of Rs.2,000/-, in default to undergo additional RI for 03 months.
2. Accused/appellant is the husband of deceased Terasbai who died on 31.3.2009 in the hospital after receiving 100% burns in her matrimonial home on 26.3.2009 at about 12.00 noon. Marriage of the appellant and the deceased is said to have been solemnized about three years prior to 26.3.2009. After sustaining burn injuries when the deceased was hospitalized, on 26.3.2003 itself her diary statement, which was subsequently treated as her dying declaration, was recorded vide Ex.P- 35 by Guljaar Khan (PW-15) and thereafter on that day iteslf her dying declaration (Ex.P-11) was recorded by the Executive Magistrate-cum- Naib Tahsildar Sangeeta Agrawal (PW-7). In both the dying declarations it has been categorically stated by the deceased that she was subjected to cruelty by her in-laws and the accused/appellant set her ablaze after pouring kerosene oil on her. The deceased was medically examined vide Ex.P-12 on 26.3.2009 by Dr. Ramadhaar Gupta (PW-8) and he noticed 95% burns. After the death of deceased, the information was sent from the hospital based on which Merg Intimation (Ex.P-10) was recorded on 1.4.2009. Inquest on the body was prepared vide Ex.P-2 on 1.4.2009. Body was sent for post-mortem which was conducted on 1.4.2009 by Dr. Dhamendra Kumar (PW-17) vide Ex.P-37 who noticed 100% burns and opined that cause of death was cardio respiratory failure as a result of septic shock due to deep burn injuries. After investigation, charge sheet under Section 302, 34 of the IPC was filed against the accused persons, however, the charges under Sections 498, 304-B & 302/34 of IPC were framed against the accused persons by the trial Court.
3. To substantiate the charge against the accused persons, the prosecution has examined 17 witnesses. When the accused persons were questioned under Section 313 Cr.P.C. about the incriminating evidence and circumstances, they denied the same and pleaded that they are innocent.
4. Upon consideration of evidence, the trial court while acquitting co- accused persons from all the charges, convicted and sentenced the present appellant as described above.
5. Counsel for the accused/appellant submits that; • conviction of accused/appellant is substantially based on the dying declarations (Ex.P-11 & P-35) of the deceased but both these dying declarations are doubtful and from the language of the same it is apparent that the appellant has been falsely implicated in crime in question.
• Present is the case of suicide by the deceased, however, to falsely implicate the appellant in the dying declarations she has stated that accused/appellant has burnt her.
• There is no corroborative evidence supporting the dying declarations made by the deceased and in absence thereof, it is not safe to uphold the conviction of accused/appellant.
• on the same set of evidence co-accused persons have been acquitted by giving benefit of doubt, therefore, present appellant is also entitled for acquittal.
• though Budhwara Bai (DW-2) has categorically stated that at the time of incident the accused/appellant was not in the house, but the trial Court has completely ignored this fact and thereby committed an illegality.
• Lastly it has been argued that even admitting the entire case of the prosecution on its face value then also the appellant had no intention of causing death of the deceased and therefore he is liable to be convicted under Section 304 Part-I or II of IPC and not under Section 302 of IPC as has been done by the trial Court.
6. On the other hand, supporting the impugned judgment learned counsel for the State submits that;
• apart from the prompt dying declarations (Ex.P-11 & P-35), the deceased made oral dying declaration before PW-1, PW-4 & PW-9 and thus there is no reason before this Court to disbelieve the dying declarations.
• Brutality of the act of appellant can be further seen from the fact that the deceased suffered 100% burn injuries and therefore his conviction cannot be altered to Section 304 Part-I or II IPC.
7. Heard learned counsel for the parties and perused the evidence available on record.
8. Mehttar Sahu (PW-1) is the father of deceased. He has stated that marriage of the deceased was solemnized about three years prior to the date of incident and about two years after marriage she remained happy and comfortable in her matrimonial home. Thereafter the deceased informed him that the accused persons are treating her with cruelty for bringing old articles in the dowry. After about one year of this incident, he received information that the deceased had caught fire and admitted in the hospital at Janjgir-Chamap for treatment. Thereafter when he reached the hospital he was informed by the deceased that it is her in- laws who have set her aflame. In Para-6 this witness has further stated that the deceased informed her that her husband set her ablaze. During recording of statement, when the Court has asked this witness to clarify the true & real facts disclosed to him by the deceased, this witness has stated that the deceased informed him that her husband had set her ablaze. This witness remained firm and the defence has not been able to elicit anything incriminating in his lengthy cross-examination.
9. Leela Bai Sahu ((PW-2) is the mother of the deceased and she has also deposed in the same manner as deposed by her husband Mehttar Sahu (PW-1). However, it appears that she has exaggerated while deposing in the Court.
10. Chandram (PW-3) is the brother of deceased and he has stated that in the hospital the deceased told him that she was burnt by the accused persons but she did not name anyone.
11. Mehttar Lal Sahu (PW-4) appears to be local villagers who has stated that when he met the deceased in the hospital and enquired from her about the incident, she disclosed to him that in the previous night of the incident her husband had beaten her and thereafter in the morning set her ablaze after pouring kerosene oil on her. In the cross-examination this witness has admitted that the deceased was conscious and talking.
12. Jawahar Patel (PW-5) is the witness of seizure memo (Ex.P-6) by which clothing of deceased, blanket and jerry cane were seized. He is also a witness to the maps (Ex.P-7 & P-8).
13. Shobharam (PW-6) is the Patwari who prepared the map of Ex.P-7.
14. Sangeeta Agrawal (PW-7) is the Naib Tahsildar who recorded the dying declaration (Ex.P-11) of the deceased on 25.3.2009 at District Hospital, Janjgir Champa. This witness has stated that she had recorded the dying declaration of the deceased after obtaining fitness certificate from the doctor. The deceased was fully conscious and was in a position to answer the questions in proper manner. None of the relatives of the deceased was present and at the time of recording of statement, none of the relatives of the deceased was present. She has denied the fact that while making dying declaration the deceased was raising hue & cry. She has further denied recording of statement either at the instance of parents of deceased or of her own.
15. Dr. Ramadhaar Gupta (PW-8) is the doctor who did MLC of the deceased vide Ex.P-12 and noticed 95% burn injuries on her body. This witness has referred the patient to CIMS vide Ex.P-13. He has also issued certificate of Ex.P-11 to the effect that the deceased is in a fit state of mind to give her statement.
16. Shambhu Sahu (PW-9) is another witness before whom oral dying declaration was made by the deceased when he went to the hospital to see her. He has stated that the deceased informed her that it is her husband who along with other family members set her ablaze. In Para-3 this witness has stated that her husband first assaulted her and then set her aflame.
17. J.K. Rathore (PW-11) is the Assistant Sub-Inspector who helped in the initial investigation.
18. C.S. Netam (PW-12) is the Investigating Officer and has duly proved the prosecution case.
19. Naib Tahsildar J.L. Yadav (PW-13) is the person who had prepared the inquest Ex.P-2.
20. Guljaar Khan (PW-15) is the person who recorded the statement of the deceased vide Ex.P-35, which subsequently became her first dying declaration. This witness has stated that apart from certification by the doctor he had also put certain queries to the deceased and only after being satisfied that she was in a fit condition to give her statement, the same was recorded by him. He has further stated that the Executive Magistrate had also recorded dying declaration of the deceased.
21. Jagannath Sahu (PW-15) appears to be a friend of Mehttar Sahu (PW-1) and he has stated that the deceased was subjected to ill-treatment & cruelty.
22. Dr. Dhamendra Kumar (PW-17) is the person who conducted post- mortem on the body of deceased and gave his report (Ex.P-37). According to this witness, he had noticed 100% burn on the body including face, chest & forehead and opined mode of death as cardio respiratory failure due to septic shock on account of deep burn injuries.
23. Purushottam Marar (DW-1) has not stated anything specific which may help the accused/appellant.
24. Budhwara Bai (DW-2) appears to be neighbour of the accused/appellant and she has stated that after hearing cries when she reached the house of accused/appellant, she saw the deceased coming out from the house in burnt condition and that co-accused persons namely Prabha & Anusuiya Kumari were sprinkling water on her. She has further stated that thereafter she had gone to call the appellant who was at the pond at that time and reached house after 10-15 minutes thereafter.
25.We have carefully considered the evidence, materials on record and the rival contentions and gone through the judgment of the trial Court.
26. It has neither been disputed before us nor was disputed in the trial that deceased had met with her death on account of 100% burn injuries sustained in the matrimonial home. This even otherwise stands proved from her post-mortem report (Ex.P-37) and evidence of Dr. Dhamendra Kumar (PW-17), who had performed post-mortem on her body and has opined that her death was due to cardio respiratory failure due to septic shock on account of deep burn injuries sustained by her.
27. As regards the complicity of accused/appellant in crime in question, the conviction is substantially based on the dying declarations made by the deceased. The principle on which dying declarations are admitted in evidence is indicated in legal maxim "nemo moriturus proesumitur mentiri- a man will not meet his maker with a lie in his mouth". It is now a well settled principle of law that a conviction can be based on the dying declaration alone, subject of course, to the satisfaction of the Court that the same is trustworthy. If there are more than one dying declarations, they should be consistent especially in material particulars.
28. Since the entire case revolves around the two dying declarations of deceased, we think it necessary to extract these dying declarations as found in the records;-
• Statement / dying declaration recorded on 26.3.2009 by Gulzar Khan (PW-15):
e¢ Sa mDr irs ij jgrh gWw nloha rd i<+h gWw esjh 'kknh dks rhu pkj lky gks jgk gS CkPPkk vHkh ugh gqvk gS 'kknh ds ckn ls llqjky esa jg jgh gWw vkt nksigj 12%00 cts dh ckr gS vkt [kkuk ugh cukbZ Fkh esjk ifr lkl llqj esjk [kkuk cuk;s dks ugh [kkrs gSA esjk ifr eq>s [kkuk ugh cuk;s gks dgdj ykBh ls ekjus yxk gkFk] ihB esa ykBh iM+k gSA ml le; ?kj esa cq<+k llqj iqdyk cq<+h lkl Qqy ckbZ FkhA ekjus ds ckn esjk ifr fMCcs esa j[ks feV~Vh rsy dks esjs mij Mky fn;k vkSj ekfpl ls vkx yxk fn;kA eSa tyus yxh rks cq>kus Hkh yxk EkSa fpYykbZ rks dkdh lkl yksx vk, eq>s esjs llqjky okys CkPPkk ugh gks jgk gS ,oa ngst esa&&&& ugh ykbZ gks dgdj rax fd;k djrs Fks &&& rhu lky ls rax djrs vk jgs gS----------^ • Dying declaration record on 26.3.2009 at 4.25 p.m. by the Executive Magistrate;-
"iz'u& rqe dSls ty xbZ \
mRrj& eq>s llqjky i{k ds yksx izrkfM+r djrs gSA esjs
ifr }kjk eq>s ekjihV dj feV~Vh rsy Mkydj tyk
fn;k x;k gSA
iz'Uk& rqEgsa fdrus cts tyk;k\
mRrj& vkt fnukad 26-03-2009 dks nksigj 12%00 cts feV~Vh
rsy Mkydj ,oa ekjihV dj tyk;kA
iz'u& rqEgs tykus esa dkSu&2 'kkfey Fks\
mRrj& eq>s tykus esa cq<+hlkl QqyckbZ] cq<+kllqj iqdyk]
dkdhlkl &&&&&] esjh dkdhlkl dh csVh
vuqlqbZ;k ckbZ] ,oa esjs ifr jktdqekj 'kkfey FksA iz'u& rqEgkjs mij feV~Vh rsy Mkydj vkx fdlus yxk;k\ mRRkj& esjs ifr }kjk yxk;k x;kA iz'u& rqEgsa fdl dkj.k tyk;k x;k \ mRrj& esjs llqjky okys ,oa esjs ifr us eq>s ngst ds uke ls izrkfM+r] ges'kk yM+kbZ >xM+k dj ekjihV djrs FksA esjh lkl ?kluhu ckbZ lcls T;knk ekjihV djrh FkhA iz'u& rqe vius dFku fdlh ds fl[kk,s vuqlkj rks ugh ns jgh gks mRrj& ughA EkSa Lo;a vius gks'k gok'k esa cksy jgh gWwA iz'u& rqEgsa vkSj dqN dguk gS \ mRrj& dqN ugh A i<+dj lquk;k gks'k gokl esa jgdj Lohdkj fd;k"
29. On comparison of Ex.P-11 & Ex.P-35, we find that there is no material difference between the two dying declarations, Ex.P-11 & Ex.P-35. In Ex.P-35, which is earlier in point of time and recorded in the shape of her statement under Section 161 Cr.P.C. by Guljar Khan (PW-15), the deceased had specifically stated that she was set aflame by her husband after pouring kerosene oil on her body. According to evidence of Guljaar Khan (PW-15), apart from certification by the doctor he had also put certain queries to the deceased and only after being satisfied that she was in a fit condition to give her statement, the same was recorded by him. Other dying declaration was recorded at a later point of time by the Executive Magistrate (PW-7) in question-answer form vide Ex.P-11 in which the deceased has virtually reiterated what she had said in Ex.P-35. Evidence of the Magistrate (PW-7) shows that when he recorded dying declaration the doctor was present and he had certified that the deceased was in a fit state of mind to make the statement. According to the evidence of Dr. Ramadhaar Gupta (PW-8), he has appended his remarks on the dying declaration (Ex.P-11) that the deceased was conscious from the beginning to the end at the time when the statement was recorded by the Magistrate PW-7. No good reason has been urged by the defence for not believing the evidence of the doctor who has positively stated that she was conscious. This apart, the oral dying declaration made by the deceased to Mahettar Sahu (PW-1), father of deceased, Mahettar Lal Sahu (PW-2) & Sambhu Sahu (PW-9) and version of incident given in the FIR (Ex.P-17) was corroborated with the dying declarations recorded by the Executive Magistrate (PW7) & Gulzar Khan (PW-15). The defence has not been able to substantiate the plea of false implication by satisfactorily explaining as to why accused/appellant would be falsely implicated in this case. Thus, we hold that dying declarations (Ex.P-11 Ex.P-35) made by the deceased are voluntary and truthful and there is no reason before us to doubt the veracity of the same.
30. As regards the acquittal of co-accused persons on the same set of evidence, the trial Court has extended them benefit of doubt on the ground that there is no evidence to show their participation in the crime in question, whereas, in both the dying declarations the accused/appellant has been specifically named and the role played by him has been categorically described.
31. As regards the plea of alibi, it is settled position that accused pleading alibi must lead evidence to show that at the relevant time he was so far off from the place of occurrence that he could not have committed the offence. In the case in hand, the appellant has tried to explain the said circumstance by examining Budhwara Bai (DW-2) and making statement under Section 313 Cr.P.C. that on the date of incident he was not in the house, but there is nothing on record to show that when the offence was committed the appellant was so far away from the place that he could not have committed the offence, rather the consistent & corroborated dying declarations of the deceased prima facie proves involvement of accused/appellant in commission of offence in question.
32. Further, we find no substance in the argument of counsel for the accused/appellant that in the facts and circumstances of case the accused/appellant can at best be held liable guilty under Section 304 Part-I or II of the IPC. Considering the nature and extent of injuries i.e. 100% burn, it can safely be hold that he had not only intention to kill the deceased but also had the knowledge that setting her afire in such a manner would certainly result in her death.
33. For the foregoing discussions, we see no reason to interfere in the impugned judgment rendered by the trial Court. The finding of the trial Court being based on proper appreciation of evidence on record warrant no interference by this Court.
34. In the result, the appeal being sans merit meets the fate of dismissal. The accused/appellant is reported to be in jail, therefore, no further order regarding his surrender etc. is required.
Sd/- Sd/-
(Pritinker Diwaker) (I.S. Uboweja)
Judge Judge
roshan/-