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REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.827 OF 2008

DASIN BAI@ SHANTI BAI                  ……Appellant       :Versus:

STATE OF CHHATTISGARH                  ……Respondent      JUDGMENT

Pinaki Chandra Ghose, J.

1. This appeal has been filed by Dasin Bai against the  

judgment and order dated 1st December, 2006 passed  

by the High Court of Chhattisgarh at Bilaspur in  

Criminal Appeal No.1171 of 2001 by which the High  

Court  while  upholding  the  findings  of  the  Trial  

Court  has  dismissed  the  appeal  filed  by  the  

appellant. The facts of the case as narrated by the  

prosecution are briefly stated as under:

2. On February 1, 2000, in the evening, one Raju Rajak  

(who is the deceased in this case) was roaming near  

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Kargi road railway station after finishing his work  

in  a  hotel.  There  he  met  with  Dasin  Bai,  the  

Appellant herein. On the request of Dasin Bai, he  

went to drop her to her house at Kotsagar Para,  

Kota,  and  after  dropping  her  there  when  he  was  

returning, Dasin Bai asked her to stay back at her  

house. The deceased slept there by covering himself  

with a quilt. While he was asleep, Dasin Bai poured  

Kerosene, kept in a Jerricane, on him. The deceased  

woke up by the smell of Kerosene and at the same  

time, Dasin Bai set him on fire with a match stick.  

He got burnt and shouted for help. On hearing his  

shout, a neighbor, namely Santosh Yadav and others  

ran towards the house of Dasin Bai.  

3. Santosh  Yadav  covered  the  body  of  the  deceased  

with a shawl while Dasin Bai was standing there.  

Santosh Yadav (PW 1) brought Raju Rajak out, while  

the smell of kerosene was still emanating from the  

body of Raju. Raju disclosed that Dasin Bai poured  

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kerosene on him and set him on fire. Raju was taken  

to  Primary  health  centre,  Kota  and  then  he  was  

taken to District hospital, Bilaspur for treatment  

where on 3.2.2000 he died. In the hospital, dying  

declaration of Raju was recorded by S.L. Soni (PW  

12) in the presence of Radheyshyam (PW 3), Santosh  

and Basant Singh.  

4. The investigating officer seized burnt bedding, bed  

sheet, plastic jerrican, one match box, one half-

burnt  match  stick,  half  burnt  clothes  of  the  

deceased  and  one  wrist  watch  from  the  place  of  

occurrence.  Upon investigation, it was found that  

Dasin Bai committed murder by setting the deceased  

on  fire.  She  was  arrested,  the  charge-sheet  was  

filed and the case was committed to the Sessions  

for trial.

5. The Prosecution examined 12 witnesses to establish  

the charge against the accused. Statement of the  

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accused was recorded under section 313 of the Code  

of Criminal Procedure, 1973. The accused examined  

one  witness,  namely,  Basant  Singh  Thakur  in  her  

defence.  

6. The  Sessions  Court  after  hearing  the  counsel  on  

both the sides and after perusing the record, by  

its judgment dated September 29, 2001, convicted  

the appellant under Section 302 of the Indian Penal  

Code  and  sentenced  her  to  life  imprisonment.  

Aggrieved by the said judgment of conviction and  

sentence, the appellant preferred an appeal before  

the  High  Court  of  Chhattisgarh  at  Bilaspur.  The  

High Court upheld the judgment of conviction and  

sentence rendered by the Trial Court and dismissed  

the  appeal  filed  by  the  appellant.  Against  the  

judgment and order passed by the High Court, the  

appellant has filed this appeal petition from jail.

7. The  learned  counsel  for  the  appellant  contended  

that  the  dying  declaration  should  not  have  been  

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relied upon by the Trial Court and the High Court.  

It  was  his  case  that  considering  the  extent  of  

burns, sustained by the deceased, it was impossible  

on  his  part  to  give  any  dying  declaration.  The  

learned counsel for the appellant further contended  

that the evidence provided by the prosecution was  

not free and independent since they were putting  

forward the version of interested witnesses.

8. The  learned  counsel  for  the  respondents  on  the  

other hand supported the impugned judgment of the  

High Court.

9. We have heard the learned counsels for the parties.  

We see no reason to doubt the veracity of the dying  

declaration especially since there is consistency  

between them.  

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10. This Court has observed in a number of cases, that  

there is no reason to doubt the veracity of the  

dying  declaration  especially,  since  there  is  

consistency between them. In the case of  Ravi &  

Anr. v State of T.N. (2004 (10) SCC 776), it has  

been held by this Court that if the truthfulness or  

otherwise  of  the  dying  declaration  cannot  be  

doubted,  the  same  alone  can  form  the  basis  of  

conviction  of  an  accused  and  the  same  does  not  

require any corroboration, whatsoever in law.  

11. In  Mafabhai Nagarbhai Raval v. State of Gujarat,  

(1992) 4 SCC 69 it has been held by this Court:

“It must be noted that PW2 recorded the  statement  within  five  minutes  and  noted  time also in the statement. The High Court  has  rightly  pointed  out  that  both  the  dying declarations are true and voluntary.  It is not the case of the defense that she  gave a tutored version. The entire attack  of  the  defense  was  on  the  mode  of  recording  the  dying  declarations  and  on  the  ground  that  the  condition  of  the  deceased  was  serious  and  she  could  not  have made the statements. On these aspects  

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as noted above, the evidence of the doctor  is  important  and  relevant.  We  have  gone  through the evidence of the doctor as well  as  that  of  the  Executive  Magistrate.  We  find  absolutely  no  infirmity  worth  mentioning  to  discard  the  evidence.  It  therefore  emerges  that  both  the  dying  declarations  are  recorded  by  independent  witnesses and the same give a true version  of  the  occurrence  as  stated  by  the  deceased.  The  dying  declarations  are  themselves  sufficient  to  hold  the  appellant  guilty.  The  High  Court  has  rightly  interfered  in  an  appeal  against  acquittal.  The  appeal  is  accordingly  dismissed.”

12. For the factual situation before us, we find that  

there  is  consistency  between  the  statements  of  

Santosh  Yadav  (PW1),  and  Radheyshyam  (PW3),  who  

were  present  when  Raju  gave  the  oral  dying  

declaration in the hospital, before he succumbed to  

the  injuries.  There  is  consistency  in  their  

statements, both stated that they reached the house  

of Dasin Bai on hearing the voice “save-save”.  

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13. Further,  the  appellant  has  alleged  the  dying  

declarations  to  be  impossible  to  give  as  the  

deceased was not in a position to do so, as he had  

suffered  burn  injuries.  However,  this  Court  has  

rightly taken the following view in a situation as  

contended by the learned counsel for the respondent  

in Pothakamuri Srinivasulu v. State of A.P.,(2002)  

6 SCC 399, where this Court observed:

“The  learned  Counsel  for  the  appellant  submitted  that  for  several  reasons  the  dying declaration cannot be believed. She  submitted  that  looking  to  the  nature  of  injuries suffered by the deceased possibly  she could not have spoken and must become  unconscious  instantaneously.  However  no  such suggestion has been made to any of  the  witnesses  including  the  two  doctors  who  respectively  conducted  the  medico- legal  examination  of  the  victim.  On  the  contrary  the  three  eye-witnesses  have  positively  stated  that  the  deceased  was  speaking when they had met soon after the  incident.  the  victim  had  died  two  days  after the incident. We cannot in the face  of this positive evidence just assume that  the injured must have become unconscious  and speechless because of the injuries and  discard  on  such  assumption  the  dying  declaration deposed to by the independent  

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witnesses  corroborated  by  the  promptly  lodged FIR.”

14. Applying the ratio of the above mentioned cases to  

the present case, we find that the counsel for the  

appellant  has  argued  on  the  same  lines.  Merely  

because the deceased suffered 70 per cent burns,  

this does not raise an assumption that he could not  

have given the oral dying declaration. We are of  

the  opinion  that  the  High  Court  was  right  in  

believing  the  oral  dying  declaration  of  the  

deceased as it did not suffer from any infirmity.  

Therefore, the contention of the respondent that  

the deceased could not give a dying declaration is  

devoid of merit.   

15. We  are  of  the  opinion  that  present  case  also  

involves  appreciation  of  circumstantial  evidence  

and application of Section 106 of the Evidence Act,  

which unambiguously lays down the law with respect  

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to any fact especially within the knowledge of a  

person. In State of Rajasthan v. Kashi Ram, (2006)  

12  SCC  254,  it  was  observed  by  this  Court  in  

respect of Section 106, that when there is any fact  

especially within the knowledge of a person, the  

burden of proving that fact is upon him. This Court  

held as follows:

“The  provisions  of  Section  106  of  the  Evidence  Act  itself  are  unambiguous  and  categoric  in  laying  down  that  when  any  fact is especially within the knowledge of  a person, the burden of proving that fact  is  upon  him.  Thus,  if  a  person  is  last  seen with the deceased, he must offer an  explanation as to how and when he parted  company with the deceased. He must furnish  an explanation which appears to the Court  to  be  probable  and  satisfactory.  If  he  does so he must be held to have discharged  his  burden.  If  he  fails  to  offer  an  explanation  on  the  basis  of  the  facts  within his special knowledge, he fails to  discharge  the  burden  cast  upon  him  by  Section 106 of the Evidence Act.”

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16. Further, while dealing with issue of cases resting  

on circumstantial evidence, where the presence of  

special knowledge is with the accused, this Court  

has  reiterated  time  and  again  that  “in  a  case  

resting on circumstantial evidence if the accused  

fails  to  offer  a  reasonable  explanation  in  

discharge of the burden placed on him by Section  

106, that itself provides an additional link in the  

chain of circumstances proved against him.”

17. The same observation has again been given in Babu  

alias  Balasubramaniam  &  Anr.  v.  State  of  Tamil  

Nadu, (2013) 8 SCC 60, that “appellant-1 could have  

by virtue of his special knowledge regarding the  

said  facts  offered  an  explanation  from  which  a  

different inference could have been drawn. Since he  

has not done so, this circumstance adds up to other  

circumstances  which  substantiate  the  prosecution  

case.”

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18. The  appellant/accused  in  her  statement,  recorded  

under Section 313 of Criminal Procedure Code, has  

not given any explanation as to how the deceased  

was burnt and she even admits to be unaware of the  

name of the deceased. This is highly improbable and  

cast doubt on the innocence of the accused. She is  

unable to discharge the burden cast upon her by  

Section 106 of the Evidence Act, as it was within  

her special knowledge as to how the deceased came  

into the premises of her house.

19. The ground of defense taken by the appellant, that  

she did not have any motive to kill the deceased,  

is ill founded and does not break the chain of  

circumstances. Therefore, when facts are clear it  

is not necessary to have proof of motive or ill-

will to sustain conviction. (See Mulakh Raj & Ors.  

v. Staish Kumar & Ors., (1992) 3 SCC 43.

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20. Further,  with  regard  to  the  aspect  of  the  

witnesses, PW-1 and PW-3, who recorded the dying  

declaration,  were  neighbours  of  the  accused  and  

hence the Trial Court correctly held that they are  

not interested witnesses. The findings of the Trial  

Court also bring to light the fact that they had no  

animosity with the appellant, and were visiting her  

house only on the fateful night.

21. The Trial Court and the High Court have rightly  

analysed the evidence of these witnesses and the  

statements made in the dying declaration referred  

to above and held the accused guilty. That being  

so,  no  interference  is  called  for.  This  appeal  

fails and is dismissed. There shall be no order as  

to costs.  

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……………………………………………………J (M.Y. EQBAL)

……………………………………………………J (PINAKI CHANDRA GHOSE)

New Delhi;

February 11, 2015.

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