DASIN BAI @ SHANTI BAI Vs STATE OF CHHATTISGARH
Bench: M.Y. EQBAL,PINAKI CHANDRA GHOSE
Case number: Crl.A. No.-000827-000827 / 2008
Diary number: 1127 / 2007
Advocates: JAIL PETITION Vs
DHARMENDRA KUMAR SINHA
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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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