//
you're reading...
legal issues

“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.

Advertisements

About advocatemmmohan

ADVOCATE

Discussion

Comments are closed.

Blog Stats

  • 1,631,984 hits

ADVOCATE MMMOHAN

archieves

Enter your email address to subscribe to this blog and receive notifications of new posts by email.

Join 1,846 other followers

Follow advocatemmmohan on WordPress.com