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Wednesday, February 11, 2015

"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."

                                                                  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.



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:

On February 1, 2000, in the evening, one Raju Rajak (who is the deceased  in
this case) was roaming near 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.



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 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.



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.



The Prosecution examined 12 witnesses to establish the  charge  against  the
accused. Statement of the 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.



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.

The learned counsel for the appellant contended that the  dying  declaration
should not have been 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.



The learned counsel for the respondents on  the  other  hand  supported  the
impugned judgment of the High Court.



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.



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.



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 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."







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".



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  witnesses  corroborated  by
the promptly lodged FIR."



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.



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 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."





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."



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."



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.



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.



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.





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.





............................................................J

(M.Y. EQBAL)







............................................................J

(PINAKI CHANDRA GHOSE)

New Delhi;

February 11, 2015.











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